A    TREATISE 


ON 


OlSTIONS  OF  LAff  AND  FACT, 


IISSTEUOTIONS  TO  JUEIES 


AND 


BILLS  OF  EXCEPTIONS 


By  J.  O.  ^VELLS, 

I  I  ' 

Atithob  of  "Res  Adjudicata  and  Stare  Decisis,"  "Separate  Peopertt  or 
Married  Women,"  etc. 


[NSW  EDITION:   REVISED  AND  ENLARGED.] 


DES  MOINES: 

MILLS  &  COMPANY,  LAW  PUBLISHERS, 

1879. 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-six, 

By  J.  C.  WELLS, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  seventy-eight. 

By  mills  &  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


T 


MILLS  &  COMPANY, 

STEREOTYPERS, 

DES  MOIKES,  IOWA. 


PREFACE. 


I  ALWAYS  read  a  preface,  and,  therefore,  take  it  for  granted 
that  all  other  persons  do  the  same  thing.  So  I  shall  not  in- 
dulge in  the  rather  common  affectation  of  remarking  that  a 
preface,  though  a  necessary  part,  of  a  book,  is  apt  to  be  passed 
over  without  interest.  This  one  is  set  down  here  for  the  very- 
purpose  of  being  read  the  first  thing  in  order ;  and  I  shall 
expect  every  one  who  has  occasion  to  use  this  volume  to 
comply  strictly  with  this  expressed  design.  It  must  by  no 
means  be  omitted.     So  much  for  "  preliminary  egotism." 

Evidently,  a  primary  object  in  the  preparation  of  legal 
text-books  is,  to  enable  younger  attorneys  to  avail  themselves 
of  the  experience  of  their  predecessors  and  contemporaries. 
And,  besides,  since  it  is  plain  that  as  adjudications  all  relate 
to  points  which  have  been  controverted,  and  which  have  been 
made  the  basis  of  carrying  causes  to  the  appellate  courts,  the 
same  points,  and  the  same  doubts  thereon,  are  always  liable 
to  occur  again  in  practice ;  and  hence,  by  having  at  hand,  in 
a  compendious  form,  the  results  which  have  been  reached, 
much  labor,  and  many  mistakes  leading  to  loss,  may  be 
avoided. 

And,  in  preparing  causes  and  arranging  evidence,  it  is  very 
important  to  entertain  clear  ideas  of  the  forum  to  which 
particular  questions  must  go  for  determination.     And,  also, 


755858 


4:  PKEFACE. 

correct  knowledge  of  the  due  methods  of  instructing  juries, 
and  of  objecting  to  supposed  erroneous  rulings  of  the  court, 
will  greatly  facilitate  safe  practice  and  prompt  results  in  the 
management  of  litigation.  Indeed,  instructions  and  bills  of 
exception  ought  to  be  drawn  with  as  much  care  as  pleadings. 
Bills  of  exception  are  pleadings  in  appellate  courts. 

The  present  work  has  been  written  with  as  much  concise- 
ness as  was  judged  consistent  with  a  clear  presentation  of  the 
topics  therein  embraced.  And  many  more  cases  have  been 
examined  than  found  a  place,  since  I  have  not  been  anxious 
to  note  all  merely  confirmatory  decisions,  but  rather  variations 
and  discrepancies.  Wherever  the  reader  does  not  find  marks 
of  dissenting  opinions  on  the  various  matters  presented,  he 
may  be  sure  that  I  have  not  discovered  such  in  my  careful 
research  of  the  Reports. 

Hoping  that,  in  a  humble  degree,  this  work  may  be  re- 
garded as  a  tribute  to  that  "  duty  which  every  man  owes  his 
profession,"  I  submit  it  to  the  candid  generosity  of  my 
brethren. 


TABLE  OF  CONTENTS. 


PART    I. 


QUESTIONS    OF    LAW    AND    FACT. 

Chapter  Page 

I.  General  Relation  of  Court  and  Jury,    ...      9 

II.     Criminal  Trials, 35 

III.  Construction  of  Written  Instruments,     ...    55 

IV.  Interpretation  of  Laws, 63 

V.     Interpretation  of  Language, 69 

VI.     Construction  of  Contracts, 78 

YII.  Intention,  Knowledge,  and  Notice,      ....     94 

YIII.     Identity  and  Alteration, 119 

IX.     Authority, 128 

X.     Time, 135 

XL     Location,.     .    .     . 141 

XIL     Title, 148 

XIII.  Possession, 161 

XIV.  Sale  ant)  Delivery, 171 

XV.  Promissory  Notes  —  Payment  and  Usury,     .     .178 

XVI.     Insurance, 196 

XVII.     Obstruction  and  Nuisance, 211 

XVIIT.     Unskilfulness  and  Negligence, 215 

XIX.     Fraud,      .     .     .     .     : 236 

XX.     Malice, 254 

XXI.     Miscellaneous  Items, 261 

XXII.     Evidence, 277 

o 


6 


TABLE   OF   CONTENTS. 


PAKT    II. 

ON    THE    LAW    OF    INSTRUCTING   AND    CHARGING 

JURIES. 

Chapter  Page 

I.  Nature  of  Instructions,     .• 287 

11.  Mode  and  Time  of  Giving  Instructions,   .     .     .301 

III.  Oral  and  Written  Requests  and  Instructions,  312 

lY.  Modifications  and  Refusals, 320 

Y.  Repetitions  and  Additional  Instructions,     .     .332 

YI.  Legal  Effects  op  Error 338 

YII.  Requisites  of  Instructions, 347 

Ylll.  Instructions  Uncertain  and  Inconsistent,     .     .  365 

IX.  Instructions  Abstract  and  Inapplicable,     .    .  379 

X.  Instructions  assuming  Facts, 401 

XI.  Hypothetical  Instructions, 409 

XII.  Specific  Relations  of  Instructions  to  Evidence 

IN  Civil  Cases, 416 

XIII.  Instructions  Relating  to  Damages,      ....  430 

XIY.  Directing  Yerdicts, 440 

XY.  Instructions  especially  adapted  to  Criminal 

Cases, 448 

XYI.  Instructions  on  Criminal  Evidence,     ....  463 

XYII.  Specific  Applications, of  Instructions,     .    .    .  475 


PAKT  III. 


BILLS    OF   EXCEPTION. 

Chapter  Page 

i.     Office  OF  Bills  of  Exception, 493 

II.     The  Right  of  Excepting,  and  Waiver  thereof,  509 

III.     Construction  of  Bills, 519 

lY.     Bills    must    show  injurious  Error  affirma- 
tively,     530 


TABLE   or   CONTENTS. 


Chapter  Page 

V.    Bills    must    only  present   Questions    raised 

BELOW, 539 

VI.     General  Exceptions, 553 

VII.     Specific  Exceptions, 557 

VIII.    Other  Requisites, 565 

IX.    DiscRETiONjiRY  Matters  not  Exceptionable,  .    .  567 

X.    New  Trials, 578 

XI.    Incidental  Matters  which  are  not  Exception- 
able,   582 

XII.    Matters    as    to    Evidence    and    Instructions 

which  are  not  subject  to  Exception,  .    .    .  594 

XIII.  Exceptions  to  Evidence, 607 

XIV.  Exceptions  to  Instructions, 616 

XV.     Other  Exceptionable  Matters, 623 

XVI.  Mode  and  Time  of  taking  Exceptions,  ....  631 

XVII.     Preparing  Bills  of  Exception, 636 

XVIII.     Disallowed  Exceptions, 652 

XIX'.    Practice  in  the  Appellate  Court, 658 

TABLE  OF   CASES,     .    .    .  * 669 

INDEX, 703 


A 

TREATISE  ON  LEGAL  TRIALS. 


I>A-IIT  I. 
QUESTIONS  OF  LAW  AND  FACT. 

CHAPTER   I. 
Geneeal  Eelatioit  of  the  Coubt  ai^t>  Jury. 

§  1.  In  the  trial  of  causes,  it  is  the  usual  province 
of  the  court  to  determine  all  questions  concerning  the 
jpleadings  and  the  issues  made  thereby.  As,  for  ex- 
ample, what  issues  are  made  by  the  pleadings,^  and 
what  the  allegations  are,  and  whether  denied  or  not.^ 
And  the  construction  and  effect  of  these  allegations,^ 
as  also  the  nature  of  the  action,  and  of  the  plaintiff's 
demand.* 

§  2.  And  the  law  of  the  case  is  with  the  court, 
while  the  facts,  if  controverted,  are  exclusively  for 
the  determination  of  the  jury.  And  herein  it  is  the 
duty  of  the  court  to  instruct  the  jury  on  the  law  as 
applicable  to  the  case  in  hand,  stating  the  principle 

1 15  Iowa,  561.  3  3  Met.  (Ky.)  51. 

24  Iowa,  154.  4  6  Iowa,  2:2. 

9 


10  qijestio:n^s  of  law  a:nt>  fact.        [Paet  l 

of  liability,  the  burden  of  proof,  the  presumptions  of 
law  in  certain  circumstances,  and  the  nature  and  ap- 
plication of  the  rules  of  evidence;  and  then,  where 
the  "  question  is  one  of  fact,  about  which  different 
minds  may  honestly  differ,  it  is  the  province  of  the 
jury  ultimately  and  definitively  to  decide.  Upon 
them  the  constitution  and  the  laws  have  placed  the 
responsibility,  and  upon  them  it  must  rest."  ^  Mixed 
questions  of  law  and  fact  are  for  the  jury  also,  under 
the  instructions  of  the  court;  ^  they  looking  to  the 
court  for  the  law,  and  to  the  evidence  for  the  facts,' 
unless  there  is  a  demurrer  to  the  evidence. 

In  a  case  in  Tennessee,  the  counsel  for  the  defence 
maintained  that  the  jury  were,  in  civil  causes,  judges 
of  law  and  fact,  and  were,  accordingly,  at  liberty  to 
disregard  the  opinions  of  the  Supreme  Court,  and  the 
instructions  in  the  case;  so  that,  while  they  would  pay 
respect  to  the  opinions  of  the  courts,  indeed,  yet  they 
might  make  the  final  decision  for  themselves,  inde- 
pendently; but  the  court  said  that  this  proposition 
was  of  dangerous  tendency,  and  not  permitted  by  the 
laws  of  the  state.^  But,  anciently,  it  seems  that  the 
jury  did,  in  all  cases,  determine  matters  "  without  the 
observance  of  any  practical  distinction  between  the 
law  and  the  facts  of  the  case."  *  But  this  is  now  set- 
tled the  other  way,  with  certain  exceptions,  which  I 
will  note  hereafter.  And  so,  the  jury  have  no  discre- 
tionary power  to  find   as  matter  of  fact,  any  more 

6 15  Pickering,  295.  431 ;  Green    v.   Hill,   4  Texas, 

6  Whiiley     v.    Whiteman,    1     465. 
Head  (Tenn.)  610.  ^  McCorry  v.  King's  heirs,  3 

^Masser  v.  Fingle,   29    Mo.     Humphrey,  270. 

^  State  V.  Crateau,  23  Vt.  22. 


Chap.  I.]      EELATION   OF   THE   COUllT   AIsTD   JURY.  11 

than,  expressly  or  avowedly,  matter  of  law ;  ^°  nor 
can  a  counsel  be  permitted  to  argue  the  correction  of 
an  instruction  to  the  jury.  In  a  case  in  Yirginia, 
wherein  this  was  attempted,  the  Court  of  Appeals 
remark,  "  It  is  a  duty  which  the  court  owes  to  its  own 
self-respect,  as  well  as  to  the  speedy  administration 
of  justice,  not  to  allow  counsel  to  discuss  before  the 
jury  the  same  matter  which  has  been  already  decided 
by  it." '' 

§  3.  The  mutual  powers  and  responsibilities  of  the 
court  and  jury  are  these,  therefore:  The  jury  is  mor- 
ally bound  to  be  governed  by  the.  instructions  of  the 
court,  and  is  not  to  inquire  whether  these  are  I'ight 
or  wrong.  The  .remedy  for  wrong  instructions  is  by 
exception  and  appeal.'"  And  the  judge  cannot  cor- 
rect a  verdict  rendered.  So,  where,  in  an  action  on 
an  injunction  bond,  the  jury,  by  the  instruction  of 
the  court,  considered  certain  items  of  damage  which 
ought  to  have  been  excluded;  and  thereupon  a  mo- 
tion was  made  for  a  new  trial,  on  which  the  judge 
revised  the  verdict,  and  reduced  the  amount  by  the 
sum  claimed  on  the  bad  counts,  it  was  held  that  this 
was  an  invasion  of  the  province  of  the  jury.'^  While 
the  punislnnent  of  juries  by  attaint  was  in  vogue,  the 
jury  might  give  a  general  or  special  verdict,  but  the 
former  was  held  to  be  dangerous  by  Lord  Coke,  who 
says,  "Although  the  jury,  if  they  will  take  upon 
them  the  knowledge  of  the  law,  may  give  a  general 

I*' Wilson   V.    Inloes,    6    Gill  ^^  jg^ett  v.  Smart,  11  Iowa, 

(Md.)  168.  506. 

11  Delaplane  v.  Crenshaw,  1 5  ^^  Brown    v.    Jones,    5  Nev. 

Gratt.  481.  374. 


,  12  QUESTIONS   OF   LAW  AND   TACT.  [Part  I- 

verdict,  yet  it  is  dangerous  for  them  to  do  so;  for,  if 
they  mistake  the  law,  they  run  into  the  danger  of  an 
attaint;  therefore,  to  find  the  special  matter  is  the 
safest  way,  where  the  case  is  doubtful."  (Coke  on 
Litt.  228  b.) 

§  4.  Attaint  being  done  away,  the  errors  of  a  jury 
can  only  be  reached  by  the  court  in  the  way  of  cor^ 
rection,  by  a  new  trial.  "  It  is  within  the  province, 
and  often  the  duty,  of  the  court  to  set  aside  a  ver- 
dict where  it  appears  to  be  contrary  to  the  weight 
of  evidence.  On  a  first  trial,  there  may  be  room  to 
believe  that  the  jury  may  have  fallen  into  some  error 
in  regard  to  the  law,  or  in  regard  to  the  nature  and 
force  of  the  evidence,  which  they  tliemselves  would 
correct,  upon  a  careful  revision.  So  it  may  happen 
that,  on  a  first  trial,  when  the  cause  is  new  to  the 
counsel  and  the  court,  the  parties  and  counsel  may 
set  forth  their  respective  grounds  less  definitely  and 
clearly,  and  the  court  may  instruct  less  fully  and 
definitely  than  after  the  cause  has  been  revised  by 
the  whole  court,  and  the  grounds  of  law  and  the 
rules  respecting  the  admission  and  application  of  the 
evidence  deliberately  considered  in  reference  to  the 
particular  case.  Under  these  circumstances,  it  may 
often  be  expedient  to  grant  a  second,  and  sometimes 
even  a  third,  trial.    .  .  . 

"  This  class  of  cases,  however,  is  clearly  distinguish- 
able from  another,  in  which  the  court  may  be  called 
upon  to  interpose  its  authority  in  a  more  persevering 
manner,  to  prevent  a  judgment  from  being  entered 
on  a  \erdict  plainly  illegal.  There  are  cases  where, 
by  the  ordinary  forms  of  proceeding,  the  issue  must 


Chap.  I.]      KELATION^   OF   THE   COURT   ANT>   JITPtT.  13 

go  to  the  jury,  but  where  it  depends  upon  a  few  facts 
which  are  plainly  proved,  and  stand  uncontradicted, 
and  where  the  rules  of  law  applicable  to  such  facts 
are  plain  and  well  settled,  and  where,  therefore,  the 
verdict  must  obviously  be  found  one  way,  or  be  man- 
ifestly wrong;  as,  in  a  case  of  trover,  or  breach  of 
contract,  in  which  the  law  has  settled  a  rule  of  dam- 
ages, and  the  evidence  is  uncontradicted.  It  depends 
upon  computation  on  certain  data.  Still  the  assess- 
ment of  damages  is  strictly  within  the  province  of  the 
jury,  and  they  must  pass  upon  it.  Should  the  jury 
persist  either  in  refusing  to  find  the  proper  damages, 
or  in  finding  arbitrary  or  vindictive  damages,  under  a 
supposed  general  power  to  assess  damages,  it  would, 
undoubtedly,  be  the  duty  of  the  court  to  refuse  to 
enter  a  judgment  upon  such  a  verdict,  and  to  set  it 
aside  as  often  as  it  should  be  thus  returned."  ^^ 

§  5.  The  court  cannot  strike  out  a  jjlea  on  the 
ground  that  it  is  not  sustained  by  the  proof.  "  If 
the  court,  after  the  evidence  was  all  heard,  were  to 
assume  to  strike  out  a  plea  because  it  was  not  sus- 
tained by  the  proof,  the  right  of  the  jury  to  try  issues 
of  fact  would  be  violated,  and  trial  by  jury  thus  ter- 
minated. This  has  never  been  indulged,  and  cannot 
be,  so  long  as  trial  by  jury  obtains.  The  court  has 
the  right  to  inform  the  jury  what  facts  must  be  proved 
to  sustain  the  issue,  but  not  to  determine  whether  such 
facts  have  been  established ;  and  if  the  court  thinks . 
they  have  not,  to  take  the  issue  from  the  jury  by 
striking  out  the  pleadings.^^     Yet  where,  in  an  action 

1'^  Eastman  v.  Cooper,  15  Pick.         ^^  Or^e  v.  Cook,  31  III.  2?S. 
294. 


14  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

on  a  recognizance,  the  jDlea  of  nul  tiel  record  was 
overruled  after  verdict  rendered,  it  was  held  proper 
on  the  ground  that  the  jury  had  not  acted  upon  it. 
The  court  said,  "  The  recognizance  was  put  in  evi- 
dence at  the  trial,  but  judgment  was  not  pronounced 
on  the  plea  till  after  the  verdict.  The  plea  to  the 
court  and  the  pleas  to  the  country  were  tried  at  the 
same  time,  but  not  together  —  the  one  by  the  court 
and  the  other  by  the  jury.  After  verdict  for  the 
plaintiff,  the  court  gave  judgment  for  him  specially 
on  the  plea  of  nul  tiel  record;  and  this  was  less  irreg- 
ular than  our  peculiar  practice  generally  is.  When 
the  verdict  is  for  the  j^laintiff,  and  his  replication  of 
hahetur  tale  recordum  is  also  sustained  on  inspec- 
tion, the  course  is  to  enter  judgment  for  him  gen- 
erally, as  it  disposes  of  the  whole  case;  if  the  plea 
is  sustained,  judgment  is  entered  for  the  defendant, 
non  obstante  veredicto.  Though  it  would  have  been 
an  irregularity  had  the  jury  determined  it,  it  would 
not  have  prejudiced  the  defendant,  and  consequently 
not  have  been  cause  for  reversal."  ^''' 

§  6.  To  take  a  verdict  subject  to  the  opinion  of  the 
court  is  held  contrary  to  the  theory  of  trial  by  jury, 
when  facts  are  to  be  deduced  from  disputable  or  un- 
certain evidence.'^ 

§  7.  There  are  some  exceptions  to  the  general  rule 
as  to  the  decision  of  law  and  fact  in  a  case.  It  seems 
that  Georgia  adheres  to  the  ancient  rule,  that  in  all 
civil  causes  (as  well  as  criminal)  the  jury  are  to  de- 
termine law  and  fact,  subject  only  to  the  restriction 

1^  Rhoads   v.  Commonwealth,  ^"  Brower  v.    Orsa,  2  Bosw. 

15  Pa.  St.  276.  (N.  Y.)  .%7. 


Chap.  I]      RELATION   OF   THE   COURT   AKD   JURY.  15 

of  the  power  to  grant  a  new  trial,  and  so  the  law  may 
be  discussed  to  the  jury.^^  And  the  exceptions  in 
criminal  causes  will  be  considered  specially  in  the 
following  chapter.  And  thus  where  a  statutory  re- 
quirement concerning  a  notice  of  sale  entered  into 
consideration,  the  Supreme  Court  of  the  United  States 
decided  that  this  was  within' the  province  of  the  jury, 
as  being  a  mixed  question  of  law  and  fact.^^  Where 
the  statute  required  the  signature  of  five  proprietors 
of  a  meeting-house  to  sign  an  application  to  a  justice 
of  the  peace  to  call  a  meeting  of  the  whole  proprie- 
tors, it  was  held  to  belong  to  the  court,  and  not  the 
jury,  to  decide  whether  five  proprietors  had  signed  as 
required.^*'  This  was,  however,  on  the  ground  that  it 
is  the  function  of  the  court  to  decide  all  questions  on 
the  admissibility  of  evidence,  even  questions  of  fact. 
In  I^ew  Jersey,  it  seems,  the  court,  or  jury,  may  pass 
upon  the  question  as  to  whether  an  arrest  or  impris- 
onment was  for  a  cause  of  action,  or  damages  recov- 
ered, for  seduction.^^ 

§  8.  A  judge  necessarily  has  a  great  degree  of  legal 
discretion  intrusted  to  him,  in  order  that  the  laws 
may  be  enforced,  and  justice  and  equity  be  meted  out 
to  all  citizens  and  claimants.  This  discretion,  how- 
ever, is  not  merely  arbitrary,  but  is  to  be  exercised  in 
accordance  with  the  known  principles  and  rules  of 
law.  And  so,  where  a  jury  returns  a  verdict  re- 
sponsive to  the  issues,  the  judge  has  no  discretionary 

18  Kobinson  V.  Adkins,  19  Geo.          20  9  Cush.  511. 

401.  21  Wallace   v.  Coil,    4  Zabr. 

19  Cooley     V.     O'Connor,    12     602. 
Wall,  400. 


16  QUESTIONS    OF   LAW   A^n>    FACT.  [Part  T. 

power  to  set  aside  the  verdict,  upon  his  own  motion; 
although  it  may  be  against  his  instructions,  and 
against  the  weight  of  evidence.  This  power  of  set- 
ting aside  verdicts  exists  only  to  be  invoked  by  a 
party  aggrieved,  and  the  entry  of  a  judgment  upon 
a  valid  verdict,  has  nothing  discretionary  in  it,  but  is 
merely  a  ministerial  act,  for  the  performance  of  which 
a  writ  of  mandamus  will  issue  if  necessary .^^ 

§  9.  As  to  chancery  proceedings,  it  is  held,  in 
Pennsylvania,  that  if  the  judge  in  his  discretion  sub- 
mit issues  to  a  jury,  their  verdict  is  merely  advisory. 
The  court  say,  "  Especially,  in  a  case  where  a  trust, 
or  the  conversion  of  an  absolute  deed  into  a  mort- 
gage, is  attempted  to  be  made  out  by  parol  evidence, 
the  court  and  jury  exercise  the  functions  of  a  chan- 
cellor, and  the  evidence,  assuming  the  testimony  of 
the  witnesses  to  be  true,  ought  to  be  such  as  would 
satisfy  his  conscience.  '  The  judge  alone  is  the  chan- 
cellor. The  province  of  the  jury  is  to  aid  him  in 
ascertaining  the  facts  out  of  which  the  equities  arise. 
If  the  facts  are  not  disputed,  he  is  to  declare  their 
effect,  and  determine  whether  the  claim  or  defence  is 
well  founded.  A  chancellor  is  judge  both  of  the 
equity  and  the  facts.  It  is  in  his  discretion  whether 
he  will  send  an  issue  to  a  jury.  And  if  he  does,  their 
verdict  is  only  advisory.  It  is  not  conclusive  upon 
him.  Wherever,  therefore,  upon  the  trial  of  an  eject- 
ment founded  upon  an  equitable  title,  the  court  is  of 
the  opinion  that  the  facts  proved  do  not  make  out  a 
case  in  which  a  chancellor  would  decree  a  convey- 

22  Lloyd  V.  Brinck,  36  Tex.  1. 


Chap.  I.l       EELATIO^T    OF    THE    COUET   AND   JUEY.  17 

ance,  it  is  his  duty  to  give  binding  instructions  to  that 
effect  to  the  jmy.' "  ^^  In  Texas  it  has  been  held  that 
the  province  of  a  jury  in  equitable  cases  is  the  same 
as  in  law  courts,  and  the  sufficiency  of  their  verdict 
will  be  determined  by  the  same  rules.~^  In  Georgia, 
in  the  absence  of  a  distinct  chancery  court,  the  inter- 
vention of  a  jury  to  find  the  facts  is  made  imperative ; 
and  they  render  a  decree  upon  the  merits,  instead  of 
mere  interlocutory  verdicts  on  special  facts  —  their 
decree  herein  answering  to  a  final  verdict  at  law.~^ 

§  10.  Under  a  code  abolishing  the  distinction  be- 
tween common  law  and  chancery  proceedings,  it  has 
been  held,  nevertheless,  that  these  cases  which,  under 
the  prior  common  law  system  were  triable  by  a  jury, 
remain  so  triable;  and,  like-wise,  formei*  equitable  ac- 
tions remain  triable  by  the  court  alone.-*^  And  it  is 
discretionary  in  the  latter  class,  whether  any  issues 
shall  be  submitted  to  a  jury.~'' 

§  11.  In  statutory  courts  of  special  jurisdiction 
merely,  having  no  common  law  jurisdiction,  it  seems 
that  juries  are  judges  of  laAV  and  fact.^^ 

§  12.  The  jury  may,  it  seems,  give  an  extrajudicial 
opinion  at  the  request  of  the  parties,  for  the  regula- 
tion of  their  conduct;  as,  for  example,  concerning  a 
mill  and  its  appendages.^^ 

§  13.  It  has  been  held  that,  "  in  all  questions  de- 

23  McGinity  v.  McGinity,  63         27  McCullough      v.     McCul- 

Pa.  St.  44.  lough,  ibid.  229. 

2MVells U.Burnett, 7 Tex. 586.  28  chamberlin    v.   Brown,    2 

25  Williams    v.    Mclntyre,    8  Dons;.  (Mich.)  120,  note. 
Geo.  34.  29^Den  ^   Wright,  Pet.  C.  C. 

2«  Ellis  V.  Kreutzinger,  31  Mo.  72. 
i33. 

2 


18  QUESTIONS    OF   LAW   AXD    FACT.  [Part.  I. 

pending  upon  a  general  inference  from  a  multiplicity 
of  particulai*  facts,  the  inference  is  always  one  of  fact; 
unless  the  law  has  established  some  fixed  rule,  —  as,  six 
months'  notice  to  quit,  or  sending  notice  of  the  dishon- 
or of  a  bill  by  next  post,  —  or  where  the  inference  is 
one  which  admits  of  no  doubt,  so  that  it  will  strike  all 
minds  alike.  In  such  cases  the  court  may  determine 
it  as  matter  of  law,  as  they  do  other  cases  where  the 
tendency  of  the  testimony  is  all  in  one  direction.  But 
in  all  cases  of  doubt  of  this  character,  and  where  the 
law  has  fixed  no  rule,  the  mference  is  one  to  be  made 
by  the  jury  —  such  are  questions  of  due  diligence, 
skill,  reasonable  time,  probable  cause,  intention,  etc."  '^° 
§  14.  It  has  been  held  that  a  judge  has  a  discretion- 
ary right  to  make  inquiries  of  the  jury  concerning 
their  findings.  The  court  say,  "  The  presiding  justice 
has  a  discretionary  power  to  make  such  inquiries  of 
the  jury  in  relation  to  the  business  before  them  as  th& 
proper  administration  of  justice  may  require.  Such 
has  ever  been  the  usage  of  this  court.  It  sometimes 
happens  that  the  verdict  first  retui^ned  by  the  jury  is 
not  entirely  certain,  or  does  not  precisely  meet  the 
issue  joined,  or  some  of  the  issues  do  not  appear  to 
be  definitely  found.  In  such  cases,  before  the  verdict 
can  be  drawn  in  form,  it  is  not  only  proper,  but 
necessary,  to  ascertain  from  the  jury  the  real  meaning 
of  their  finding,  that  when  the  verdict  is  affirmed,  it 
it  may  with  certainty  express  the  true  intent  of  the 
jury,  or  that  the  jury  may  again  be  sent  out  for  fur- 
ther deliberation,  if  any  material  question  appears  not 

30  Sessions  v.  Newport,  23  Vt.  13. 


Chap.  I]       RELATION    OF    THE    COUBT   AND    JURY.  19 

to  have  been  determmed  by  them.  And,  even  after 
the  verdict  has  been  affirmed  and  recorded,  it  may  be 
impoi'tant  to  the  dne  administration  of  justice,  or  to 
prevent  unnecessary  litigation,  to  ascertain  whether 
certain  points  have  been  determined,  and  how  they 
have  been  determined.  It  is  not  uncommon  to  have 
several  grounds  relied  upon  in  a  trial,  when  it  cannot 
be  ascertained  from  the  verdict  itself  upon  which 
ground  it  was  found.  In  such  cases,  the  court  will 
make  the  proper  inquiries  of  the  jury,  that  if  it  appear 
to  be  found  upon  an  illegal  principle,  or  if  the  jury 
did  not  all  agree  upon  any  one  ground,  the  verdict 
may  be  set  aside."  "^^ 

§  15.  ^^len  a  cause  is  pending  in  a  court  which 
has  a  jury,  their  opinion  may  be  taken  on  any  fact 
arising  in  the  cause.^~ 

§  16.  It  is  held  that  the  power  of  determining  facts 
upon  the  e\ddence,  is  not  a  mere  power  of  the  will, 
but  a  power  invohdng  the  exercise  of  judgment  and 
discretion ;  and  must  be,  in  a  reasonable  degree,  sub- 
ject to  the  restraints  of  such  judgment  and  discre- 
tion; failing  in  which  a  new  trial  may  properly  be 
granted.^^  But  the  court  should  not  interfere  in 
advance  with  doubts  of  the  jury,  by  instructing 
them  that  the  evidence  should  be  clear  as  well  as 
satisfactory.^^ 

§  17.  Wliere  a  law  point  which  ought  to  have  been 
decided  by  the  court  is  submitted  by  the  court  to  the 

^^  Com.  V.  Roby,  12  Pick.  525,  ^  Quisenberry  v.  Quisenber- 

32  Beard  v.  Chitwood,   8  Ind.     ry,  14  B.  Mun.  (Ky.)  484. 
505.  3*  Ig-lehart    v.    Jemeson,    16 

111.  522. 


20  QUESTIONS    OF    LAW   AND   PACT.  [Part  I. 

jury,  their  verdict  will  not  be  disturbed  if  they  decide 
the  law  point  correctly,^^  the  error  of  the  court  thus 
being  cured  by  the  verdict. 

§  18.  It  will  not  be  presumed' that  a  jury  misappre- 
hended the  legal  effect  of  the  instructions,  or  failed  to 
conform  to  them.  And  where  the  court  even  errone- 
ously charged  them,  yet,  if  it  clearly  appears,  upon 
the  whole  case,  that  the  same  verdict  must  be  again 
rendered,  a  new  trial  will  not  be  granted.  *"' 

§  19.  The  judge  is  not  to  state  his  opinion  on  the 
facts.  "Where,  on  a  murder  trial,  the  judge  said, 
"  There  was  as  much  evidence  that  the  prisoner  had 
kicked  the  deceased  uj)on  the  chest,  as  upon  the 
face,"  and  then  explained  by  saying  that  he  was  sim- 
ply ruling  on  the  admission  of  testimony,  and  added, 
"  This  court  does  not  wish  to  be  understood  as  saying 
how  much  or  hoAV  little  testimony  there  is  on  any 
particular  point;  the  whole  matter  is  for  the  jury,  and 
they  will  observe  for  themselves  what  the  testimony 
is ; "  it  was  held  fatal  to  the  cause ;  the  court  above 
remarking  that  an  opinion  can  be  conveyed  as  effect- 
ually to  the  jury  incidentally  as  in  an  instruction.'^^ 

§  20.  The  consideration  by  the  court  or  jury  must 
be  entire,  embracing  the  whole  case.  So,  where,  on 
motion,  where  several  issues  of  fact  were  involved, 
and  by  agreement  of  parties  the  whole  was  submitted 
to  the  decision  of  the  court,  whereupon  the  judge 
entered  on  the  investigation  and  heard  the  evidence, 

^  Brock  V.  King-,  3  Jones  ^^  Walworth  v.  Keadsboro',  24 
Law  (N.  C.)  45;  Woodbury  v.     Vt.  265. 

Taylor,  ibid.  507.  37  gtate    v.    Harkin,    1   Nev. 

382. 


Chap.  I.]      EELATIOIT   OP   THE    COUKT   AND   JTHIY. 


21 


it  was  held  error  for  him  to  pass  judgment  on  some 
of  the  issues  of  fact,  and  submit  the  remainder  to 
a  jury."^^  And  so  a  jury  must  decide  on  the  wJiole  of 
a  case,  having  no  power  to  separate  a  phiintiif's 
demand,  nor  by  parity  of  reason,  a  defendant's  de- 
fence.^^  But  where  some  allegations  are  proved,  and 
no  proof  offered  on  others,  those  on  wliich  proof  is 
offered  may  be  submitted,  and  the  whole  case  decided 
on  them.'*" 

^  21.  Uncontro verted  or  immaterial  facts  are  not 
submitted  to  a  jury.'*^ 

§  22.  Bes  adjudicata,  when  determinable  from  the 
pleadmgs,  is  a  question  for  the  court;  wlien  from  the 
evidence,  for  the  jury.*-  And  matters  pertaining  to 
the  jurisdiction  of  a  justice  of  the  peace  is  for  the 
court. *^  And  the  matter  of  costs  is  usually  for  the 
court.** 

§  23.  A  somewhat  singular  distinction  arose,  in  a 
recent  case  in  Maryland,  as  to  the  action  of  a  court 
when  a  case  is  submitted  without  the  intervention  of 
a  jury,  and  as  to  the  right  of  the  plaintiff  tJierein  to 
take  a  nonsuit  in  order  to  avoid  the  necessity  of  an 
appeal.  In  the  case,  a  nonsuit  was  allowed  by  the 
court,   after  pronouncing  that   on  the  evidence  the 


^  Dumas  v.  Robinson,  40  Geo. 
854. 

2^  Brockway  v.  Kinney,  2 
John?.  (N.  Y.)  210. 

'^^  Jones  V.  Williamson,  6  C. 
B.  (N.  S.)  924. 

41  Howard  v.  Smith,  N.  Y. 
Superior   Court.    124  ;  Thigpen 


V.  R.  E.  32  Miss.  347  ;  Switland 
V.  Ilolgate,  8  Watts,  385. 

^  Betzer  v.  Killingei",  46  Pa. 
St.  44. 

4^  Bridgers  v.  Bridgers,  69  N. 
C.  451. 

44  Packer,  24  Iowa,  20  ;  Gup- 
py  V.  Commonwealth,  2  Grant's 
Cases  (Pa.)  66. 


22  QUESTIONS    OF   LAW   ^N:NT)   FACT.  [Part  I. 

plaintiffs  were  not  allowed  to  recover.     The  Court  of 
Appeals  say  thereon,  "  In  jury  trials  of  civil  causes, 
after  the  jury  have  agreed,  and  before  the  verdict  is 
taken,  the  plaintiff  is  called  by  the  clerk,  and  if  he 
fails  to  answer  in  person  or  by  counsel,  no  verdict  is 
given,  the  jmy  are  discharged,  and  judgment  of  non- 
suit passes  against  him.     Up  to  this  point  of  time,  and 
until  the  verdict  is  actually  announced  by  the  foreman, 
in  response  to  the  question,  '  Wliat  say  you  ?  do  yo^i 
find  your  verdict  for  the   plaintiff  or  for  the  defend- 
ant?' the  right  to  suffer  a  nonsuit  exists;  but  ceases 
after  the  plaintiff  has  answered,  and  the  foreman  an- 
nounces the  verdict.     He  is  called  for  the  pui-pose  of 
allowing  him  an  opportunity  to  determine  whether  he 
will  take  a  nonsuit,  or  hear  the  verdict;  and  he  must 
then  make  his  election.     A  nonsuit  is,  in  many  in- 
stances, of  unportance,  because  it  gives  the  party  the 
right  to  commence  the  same  suit  again,  and  alter  its 
status  by  additional  testimony ;  whereas,  if  he  answers, 
and  hears  the  verdict,  he  must  stand  on  the  case  as 
then  presented,  and   rely  upon   his   exceptions,  and 
upon  obtaining  a  reversal  of  the  judgment  on  appeal. 
"  The  submission  of  a  cause  to  the  court  for  trial, 
where  the  judge  acts  both  as  court  and  jury,  does  not 
deprive  the  plaintiff  of  his  right  to  a  nonsuit;    and 
care  should  be  taken   to    so  conduct  the  trial  as  to 
afford  him  the  same  opportunity  of  exercising  it  as  if 
a  jury  were  sworn.     In  the  case  before  us,  the  judge 
ruled  the  proffered  testimony  inadmissible,  and  thus 
far  he  was  undoubtedly  determining  a  question  of 
law  proper  for  the  court  to  decide,  if  there  had  been 
a  jury  trial.     But  after  ruling  out  the  testimony,  he 


Chap.  I.]      RELATION   OF   THE    COUHT   AND   JURY.  23 

then  said,  in  the  same  connection,  and  as  part  of  the 
same  ruHng,  that '  the  plaintiffs  were  not  entitled  to 
recover; '  and  tliis  expression  is  seized  upon  and  con- 
strued as  a  decision  of  the  case  on  the  facts,  in  making 
which  the  judge  was  acting  as  a  jury,  and  as  being 
equivalent  to  a  verdict  for  the  defendants,  after  the 
plaintiffs  had  been  called  and  had  answered.  Though 
tliis  has  been  presented  with  much  ability  and  force 
by  the  appellant's  counsel,  it  is  not,  we  think,  a  just 
and  fau  construction  of  the  action  of  the  judge.  In 
Evans'  Practice,  402,  it  is  said  with  entire  correctness, 
that  ^  the  expressions  common  in  English  books,  that 
the  judge  directed  a  nonsuit,  and  others  of  similar 
import,  mean  no  more  than  this,  that  the  judge  ex- 
pressed, in  that  form  of  words,  his  opinion  that  the 
plaintiff  was  not  entitled  to  recover;  and  that  the 
party  submitted  to  a  nonsuit  rather  than  the  judge 
should  enforce  his  opinion  by  a  direction  to  the  jury 
as  to  their  verdict.'  If,  therefore,  this  had  been  a 
jury  trial,  and  the  judge,  after  ruling  out  the  e\ddence 
and  ascertaining  the  plaintiffs  had  no  more  to  offer, 
had  said  he  was  of  opinion  they  were  not  entitled 
to  recover,  and  would  direct  the  jury  to  render  a  ver- 
dict for  the  defendants,  the  right  of  the  plaintiffs  then 
to  suffer  a  nonsuit  could  not  admit  of  doubt.  Giving 
to  this  expression  of  the  judge  a  fair  and  reasonable 
construction,  and  considering  the  connection  in  which 
it  was  used,  and  the  course  of  the  trial  up  to  that 
point,  we  are  of  opinion  it  is  to  be  treated  as  the  ex- 
pression of  his  opinion  as  a  court  that  the  plaintiffs 
were  not  entitled  to  recover,  to  be  afterwards  en- 
forced   by  his  verdict  or   finding   as  a  jury  for  the 


24  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

defendants ;  and  an  entry  of  judgment  accordingly ; 
intervening  wliicli  was  the  right  to  a  nonsuit.  It 
would  have  been  better  practice,  as  it  certainly  would 
have  obviated  all  difficulty  in  the  case,  if  the  judge, 
after  ruling  the  testimony  inadmissible,  had  withheld 
any  further  expression  of  his  opinion,  until  he  had 
either  directed  a  formal  call  of  the  plaintiffs,  or  asked 
of  their  counsel  whether  they  would  .take  a  nonsuit, 
or  stand  on  their  exception  to  his  ruling;  but  failure 
to  observe  this  more  formal  procedure  cannot  deprive 
the  plaintiffs  of  a  valuable  right,  which,  in  a  jury  trial, 
they  could  have  received  after  everything  here  relied 
on  as  a  verdict  had  been  said  by  the  court.  But,  as 
we  have  said,  this  expression  w^as  not  a  verdict,  either 
in  substance  or  form,  and  the  ruling  excepted  to  must 
therefore  be  afhi-med."  ^^ 

§  24.  The  personal  knowledge  of  the  jury  is  not, 
except  in  rare  instances,  to  enter  into  their  verdict. 
Anciently  the  rule  was  the  reverse  of  this,  and  ac- 
cordingly jurors  were  required  to  be  chosen  from  the 
immediate  vicinage.  Thus,  in  a  case  in  Kentucky, 
where  suit  was  brought  on  a  covenant  of  warranty 
in  the  purchase  of  a  slave,  the  defendant  objected 
to  evidence  of  unsoundness  after  the  sale,  proposed" 
by  the  plaintiff,  unless  the  slave  were  produced  in 
court  for  the  inspection  of  the  jury,  and  maintained 
the  best  evidence  of  extrinsic  facts  is  the  evidence  of 
the  senses;  and  so  the  testimony  of  witnesses  should 
not  be  allowed  when  the  thing  itself  could  be  exhib- 
ited to  the  jmy.     It  was  held,  however,  by  the  Court 

45  Hall  V.  Schuhardt,  34  Md.  15. 


Ciup  I.]      EELATIOI^   OF   THE    COURT   AND   JURY.  25 

of  Appeals,  on  this  point,  the  defendant  havmg  ex- 
cepted thereon,  that,  notwithstanding  the  ancient 
custom,  the  modern  usage  was  better,  and  had  super- 
seded it,  and  that  the  rule  requuing  the  best  evidence 
does  not  require  that  the  jury  should  be  furnished 
the  means  of  personal  knowledge,  or  allowed  to 
decide  according  to  the  secret  results  of  their  own 
observation,  unknown  until  disclosed  in  the  verdict, 
and  thus  free  from  scrutiny,  and  almost  from  respon- 
sibility. "  We  do  not  say,"  remarked  the  court,  "  that 
there  may  not  be  cases,  involving  the  condition  or 
qualities  of  particular  articles,  in  which  the  party 
having  the  custody  may  be  permitted,  or,  perhaps, 
even  required,  to  exhibit  it  to  the  jury,  as  affording 
the  most  satisfactory  means  of  knowledge;  but  the 
court  must  have  a  discretion,  even  in  these  cases,  to 
prevent  misconception  or  imposition.  In  general,  the 
best  means  of  proof  is  by  the  testimony  of  witnesses 
who  have  made  personal  examination,  and  in  order  to 
place  the  parties  upon  a  fair  footing  of  equality  in 
this  respect,  the  court  would  certainly  have  power,  if 
it  were  necessary,  to  require  the  one  having  the  cus- 
tody to  afford  the  requisite  opportunity  for  examina- 
tion by  the  witnesses  of  the  other."  ^^ 

§  25.  The  personal  knowledge  of  jurors  as  to  the 
character  of  witnesses  shall  not  enter  into  the  esti- 
mate of  evidence  on  which  a  verdict  is  based.  In  a 
Massachusetts  case,  the  plaintiff's  counsel  maintained 
that  jurors  had  a  right  to  act  from  their  own  knowl- 

46  Clarke  v.  Robinson,  5  B.  M.  R.  563  ;  Schmidt  v.  N.  Y.  Union 
Fire  Ins.  Co.  1  Gray,  535. 


26  QUESTIONS    OF    LAW   AND    FACT.  [Part  I. 

edge,  as  to  the  character  of  witnesses,  because  a  wit- 
ness might  have  such  a  charactei'  that  many  of  the 
jury  would  not  behove  him,  and  yet  he  might  not  be 
impeached.  But  the  court  held  that,  in  modern  times, 
it  is  thought  more  conducive  to  the  proper  administra- 
tion of  justice  to  submit  causes  to  impartial  and  un- 
biased jurors,  and  so  to  prohibit  them  from  acting  on 
their  private  knowledge;  and  that,  if  any  material  fact 
is  within  the  knowledge  of  a  juror,  he  should  be  open- 
ly sworn  as  a  witness,  and  subjected  to  the  ordinary 
modes  of  examination  and  cross-examination,  that  the 
court  and  the  parties  may  know  on  what  evidence  the 
verdict  was  rendered.*^ 

§  26.  ^Nevertheless,  it  is  both  impracticable  and  in- 
expedient to  exclude,  in  all  cases,  the  personal  loiowl- 
edge  and  experience  of  the  jury.  Especially  may 
these  be  brought  into  requisition  in  estimating  dam- 
ages. The  Massachusetts  court  remarked,  in  an  early 
case,  that  "juries  would  be  very  little  fit  for  the  high 
and  responsible  ofiice  to  which  they  are  called,  espe- 
cially to  make  an  appraisement  which  depends  on 
knowledge  and  experience,  if  they  might  not  avail 
themselves  of  these  powers  of  their  mind  when  they 
are  most  necessary  to  the  performance  of  their  duties."*^ 
This  was  spoken  with  reference  to  damages  sustained 
by  land  being  taken  for  public  use.  So  of  the  value 
of  goods  in  an  action  of  trover.^^  The  principle  of 
distinction  is  stated  to  be,  that  while  to  the  extent 

4"  N.  Y.  Union  Fire  Ins.  Co.  Pick.  16G  ;  Parks  v.  Boston, 
1  Graj',  635.  15  Pick.  209. 

48  Patterson    v.    Boston,    20         ^^  Murdock    v.    Sumner,    22 

Pick.  157. 


Chap.  I.]      RELATIOI^   OF   THE    COUKT   AND   JUKT.  27 

above  specified,  a  "juror  may  properly  call  to  his  aid 
his  personal  knowledge,  learning,  and  experience,  yet 
no  sanction  is  given  to  liis  acting  upon  his  Iviiowledge 
of  a  particular  fact  known  only  to  liimself,  and  not  a 
matter  of  common  observation  or  general  knowledge."  ^"^ 

§  27.  In  general,  the  question  of  the  admissibility 
of  evidence  is  a  question  exclusively  for  the  court. 
But  it  has  been  decided  in  a  late  case  in  California 
that  it  may  sometimes  be  submitted  to  a  jury,  as,  for 
instance,  where  it  depends  on  the  decision  of  prelim- 
inary matters  of  fact.  This  is,  however,  held  to  be 
discretionary  with  the  court.  "  It  is  enough,"  say  the 
court,  "  to  authorize  such  submission  to  the  jury,  that 
there  is  some  proof  of  the  facts  on  Avhich  the  right  to 
admit  the  evidence  is  predicated."  (1  Greenleaf,  Ev., 
§  49) .  The  rule  is,  that  if  there  be  no  evidence  of  au- 
thenticity, the  instrument  camiot  be  read  to  the  jury, 
but  if  there  be  any  fact  or  circumstances  tending  to 
prove  the  authenticity,  from  which  it  might  be  pre- 
smned,  then  the  instrument  is  to  be  read  to  the  jury, 
and  the  question,  like  other  matters  of  fact,  is  for  their 
decision.  (11  Phil.  Ev.,  C.  H.  &  E.'s  :N'otes,  503,  note.) 
And  when  a  prima  facie  case  of  execution  has  once 
been  made,  the  court  is  not  to  allow  the  other  party 
to  adduce  counter  proof  before  the  instrmnent  is 
read,  and  thus  assume  to  take  the  question  from  the 
jury."^^ 

§  28.  Direct  written  evidence  goes  to  the  court 
alone;  indirect  to  the  jury.  And  this  distinction  is 
thus  illustrated  by  the  Pennsylvania  Supreme  Court: 

"0  Schmidt  v.  N.  Y.  Union  ^i  Verzau  v.  McGregor,  23 
Fire  Ins.  Co.  1  Gray,  636.  Cal.  343. 


28  QUESTI0:N^S   of   law   A^O)   fact.  [Part  I. 

"  A  writing,  as  evidence  of  a  relation  or  right,  must 
be  either  direct  or  indirect  evidence  of  it.  Statutes, 
ordinances,  wills,  assignments  for  the  benefit  of  cred- 
itors, conveyances,  and  other  contracts  which  declare 
the  right  or  relation,  are  direct  evidence  of  it.  Let- 
ters, contracts,  inter  alios,  or  de  aliis  rebus,  or  any 
other  writings  demonstrative  of  facts  relevant  to  the 
matter  in  controversy,  and  tending  to  shoAV  its  true 
character,  are  indirect  evidence  of  it.  All  kinds  of 
direct  written  evidence,  statutes,  and  private  writings, 
are  alike  in  this,  that  they  declare  the  law  of  the  rela- 
tion, or  2)art  of  it,  and  are  to  be  interpreted  by  the 
judge,  and  not  by  the  jury.  He  has  been  trained  to 
that  very  business,  and  is  chosen  and  commissioned 
because  of  his  training,  whereas  a  jury  is  di'awn  by 
lot  for  the  particular  occasion,  and  simply  to  aid  in 
finding  the  facts.  In  this  the  duty  of  the  judge  is  ex- 
clusive of  the  jury,  because  for  this  his  education  and 
his  office  are  superior.  It  is  on  the  same  principle 
that,  when  we  want  evidence  relating  to  particular  oc- 
cupations, we  do  not  call  on  commodores  to  tell  us  of 
the  art  and  customs  of  carriers,  nor  on  farriers  for 
those  of  farmers,  nor  on  physicians  for  those  of  fish- 
ermen. The  mdirect  written  evidence  of  a  relation  is 
usually  accompanied  by  oral  testimony  aiding  or  re- 
butting the  inferences  desired  to  be  drawn  from  it, 
and  all  such  evidence  usually  goes  to  the  jury  togeth- 
er, as  evidence  on  the  disputed  question;  and  this  was 
the  meaning  of  Chief  Justice  Gibson,  when  he  said 
that  ^an  admixture  of  parol  with  written  evidence 
draws  the  whole  to  the  jury.'  (1  Pa.  K.,  386.)  In  re- 
lation to  indirect  written  evidence,  the  judge's  duty  of 


Chap  I.]      KELATIOI!^'    OF    THE    COURT   AND    JURY.  29 

interpretation  is  usually  fulfilled  in  declaring  that  the 
AVi*iting  is  or  is  not  relevant,  and  does  or  does  not  tend 
to  prove  the  matter  in  dispute."  ^~  But,  in  Alabama, 
it  is  held  that  a  jury  may  not  pass  upon  the  consisten- 
cy of  parol  evidence  with  a  record;  which,  however, 
is  based  upon  the  general  rule  that  parol  evidence  is 
not  admissible  to  vary  a  record.^^  And  it  is,  there- 
fore, not  inconsistent  with  the  above  in  reality. 

The  principle,  then,  is,  where  the  meaning  of  a  docu- 
ment depends  upon  its  terms  and  not  on  matters  of 
fact  deliors  the  document,  the  question  will  be  for  the 
judge,  even  although  the  terms  are  technical  or  scien- 
tific.^* 

§  29.  But  where  an  ambiguity  arises  from  evidence 
dehors  the  document,  which  is  plain  in  its  terms,  and 
the  ambiguity  is  in  relation  to  a  word  or  phrase  which, 
taken  in  a  scientific  sense,  means  one  thing,  and  in  a 
conuuercial  sense  another,  the  point  arose,  in  an  En- 
glish case,  whether  it  was  for  the  judge  or  jury.  In 
the  case,  which  was  an  action  for  the  infringement  of 
a  patent,  there  was  an  ambiguity  of  this  kind  in  the 
words  of  the  specifications  respectively,  that  in  the 
later  patent  being  "precipitated,  or  hydrated,  oxides 
of  iron,"  and  in  the  former  "carbonate  of  iron."  The 
testimony  of  experts  showed  that  though  "  carbonate 
of  iron  "  existed,  yet  it  was  rarely  held  for  sale,  on  ac- 
count of  its  difficulty  of  preservation,  and  that  what 
was  usually  sold  for  it  was  in  fact  a  hydrate  by  ab- 
sorption; although  carbonate  would  not,  in  a  chemical 

S2  Miller    v.    Fitchthorn,    31  ^^  Hills  v.  Loudon,  &c  ,  Co. 

Pa.  St.  256.  3  Hurl,  and  Nor.  920. 

^^  Thomason    v.    Odiim,    31 
Ala.  ]11. 


30  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

sense,  mean  "hydrate."  The  court  below  held  that 
the  specification  should  be  construed  commercially, 
not  scientilically,  and  nonsuited  the  plaintiff,  on  the 
ground  that  "  carbonate  "  commercially  meant  the  hy- 
drate; the  court  above,  after  much  hesitation,  and 
without  deciding  the  point  as  to  whether  it  was  a 
question  for  the  judge  or  jury,  set  aside  the  nonsuit, 
and  granted  a  new  trial.^^ 

§  30.  As  to  matters  of  direct  or  absolute  interpreta- 
tion, this  is  for  the  judge,  even  where  parol  evidence 
is  to  be  resorted  to  in  order  to  fix  the  meaning  or  ap- 
phcation  of  the  terms  used,  or  especially  to  determine 
the  genuineness  and  authenticity  of  the  document: 
"  As  a  preliminary  to  every  question  of  interpretation 
of  a  writing,  it  must  be  proved,  or  assumed,  that  it  is 
genuine  and  authentic,  that  it  is  free  from  fraud  in  its 
creation,  that  the  makers  were  competent,  that  the 
subject  matter  of  it  is  lawful,  and  that  it  is  executed 
according  to  law;  and  for  these  purposes  parol  evi- 
dence is  proper  in  order  to  put  the  instrument  into  the 
hands  of  the  judge  for  interpretation  and  construction. 
!N^ow,  it  is  essential  to  all  language  that  it  should  have 
objects  material,  spiritual,  or  ideal,  to  which  it  applies ; 
and  as  it  cannot  apply  itself  to  its  objects,  it  is  essen- 
tial that  some  mind  should  be  sufSciently  informed  to 
make  the  application,  else  the  wi'iting  is  senseless. 
Hence  it  follows  that  in  the  very  nature  of  things,  the 
judge  must  receive,  by  admissions  or  by  testimony, 
all  the  information  that  is  necessary  to  put  him  into  a 
position  to  interpret  and  construe  the  writing  with 

^  Hills  V.  Loudon,  &c.,  Co.  3  Hurl,  and  Nor.  920. 


CiiAP.  I.]      RELATION    OF    THE    COUBT   AXD   JURY.  31 

intelligence;  that  is,  to  apply  it  to  persons,  things,  and 
events,  according  to  the  intention  under  which  it  was 
written. 

"  This  proposition  is  applied  to  every  kind  of  writ- 
ing, ancient  and  modern,  legal  and  moral,  historical 
and  scientific;  and  is  often  expressed  in  some  such 
terms  as  these :  The  interpreter  must,  as  far  as  possi- 
ble, place  himself  intellectually  in  the  same  circum- 
stances of  time  and  place  as  the  author  of  the  Avriting 
was  in  when  he  "svrote  it,  in  order  to  enter  into  sympa- 
thy with  him,  and  be  able  to  reveal  the  thought  which 
ignorance  of  these  circumstances  must  render  indis- 
tinct and  doubtful.  This  may  be  illustrated  by  the 
case  of  a  will.  Wlien  it  was  written,  the  object  of  the 
testator's  thoughts  were  his  estate,  and  the  family  or 
friends  to  whom  he  desired  to  leave  it.  To  the  judge 
all  these  matters  must  be  explained  by  admissions  or 
by  testimony,  else  he  cannot  apply  it.  If  the  testator 
appear,  in  his  will,  to  have  expressed  himself  defec- 
tively, a  clear  knowledge  of  the  persons,  things,  cir- 
cumstances, and  usages  that  he  most  probably  had  in 
his  mind  when  he  made  the  will,  may  remove  all  doubt. 
So  it  is  with  a  statute  that  is  difficult  of  interpretation, 
a  clear  view  of  the  old  law,  and  of  the  mischiefs  that 
existed  under  it,  may  make  the  interpretation  of  the 
new  one  quite  obvious.  In  this  latter  case,  however, 
the  judge  seeks  the  extrinsic  information  for  himself; 
in  the  former,  it  is  furnished  to  him  by  testimony. 

"  More  specifically,  yet  still  very  generally,  the  rule 
may  be  repeated  thus :  In  order  to  put  the  judge  into 
position  for  interpreting  a  writing,  he  must  know  the 
language  in  which  it  is   written,  or  must  have  the 


32  QUESTIONS   OF   LAW   AIO)   FACT.  [Pakt  T. 

instrument  translated  by  an  expert  into  one  that  he 
does  loiOAV ;  if  it  contains  expressions  that  are  pecuhar 
to  some  special  business,  or  to  some  special  custom 
of  class  or  place,  he  must  have  them  explained  in 
the  same  way;  if  it  names  or  describes  persons  or 
things  unloiown  to  him,  he  must  be  informed  of  them  by 
admissions  or  testimony;  if  some  expressions  are  of 
doubtful  meaning  in  themselves,  he  may  need  to  be 
informed  of  very  many  circumstances  of  time  and  place 
under  which  the  instrument  was  written.  (1  Greenl. 
Ev.,  §§  277-282.)  From  this  it  would  seem  that  the 
evidence  that  may  be  received  in  order  to  put  the  judge 
into  a  position  proper  for  intelligent  interpretation  may 
be  very  extensive,  yet,  in  actual  practice,  it  is  usually 
very  sm.all;  for  the  matter  in  dispute  defines  the  ex- 
tent of  the  proof,  and  most  Avritings  furnish  no  rea- 
sonable grounds  of  dispute.  A  judicial,  as  well  as  a 
military  contest,  may  depend  upon  the  strength  of  a 
single  position,  or  upon  an  indefinite  number  of  minor 
ones,  and  very  often  the  active  contest  lies  at  a  great 
distance  from  the  real  object  of  the  litigation,  and  is 
terminated  by  a  sldrmish  of  outposts. 

"  All  the  facts  and  testimony  of  which  we  have  just 
spoken,  being  designed  to  put  the  judge  into  a  posi- 
tion to  interpret,  are  therefore  to  be  considered  and 
Aveighed  by  him  alone.  If  some  of  them  that  are  es- 
sential are  doubtful,  they  must  be  found  by  the  jury 
specially,  or  be  involved  in  their  genera-l  verdict,  ac- 
cording to  alternative  interpretations  by  the  judge."^^ 

§  31.  But  whether  a  contract  has  been  executed  as 
an  escrow  is  usually  a  matter  for  the  jury.    However, 

S6  Miller  v.  Fitchthorn.  3  Pa.  St.  257. 


Chap.  I.]      RELATION   OF   THE    COURT   AND   JTJRT.  -  33 

it  has  been  held  that  where  the  evidence  of  that  fact 
is  in  writing,  as  where  the  contract  has  been  signed  by 
one  of  the  parties,  and  enclosed  in  a  letter  explaining 
the  conditional  signing,  the  constrnction  of  the  evi- 
dence is  for  the  judge;  also  that  snch  evidence  was 
sufficient  to  show  that  the  contract  was  mtended  as  an 
escrow  merely  to  take  effect  on  condition  performed.^^ 
§  32.  The  sufficiency  of  evidence  is  for  the  jury, 
unless  it  has  no  tendency  to  prove  the  material  facts 
of  the  case.  ""Wlien  the  whole  testimou}^,  if  believed, 
would  not  in  law  establish  the  fact  in  controversy,  the 
judge  might  be  required  to  express  the  legal  effect  of 
the  testimony  as  matter  of  law.  But  when  the  evi- 
dence has  a  tendency  to  establish  the  controverted 
fact,  though  it  may  not  be  strong  in  its  support,  and 
the  judge  may  well  apprehend  that  the  jury  will  find 
it  insufficient  for  the  purpose  for  which  it  was  intro- 
duced, the  court  has  not,  therefore,  the  right  to  weigh 
it,  and  determine  its  insufficiency,  as  matter  of  law. 
On  the  other  hand,  if  the  evidence,  upon  the  most  fa- 
vorable construction  for  the  party  offering  it,  does  not 
tend  to  show  the  truth  of  the  proposition  stated,  it  fur- 
nishes nothing  for  the  consideration  of  the  jury;  and 
the  judge  has  the  same  power  to  say  to  the  jury  that 
it  fails  in  the  object  sought,  that  he  has  to  exclude  it 
for  irrelevancy."^^  But  the  court  may  not  withhold 
evidence  from  the  jury  so  as  to  decide  that  a  certain 
judgment  was  void,  or  rather  had  no  existence;  this 
being  deemed  a  matter  of  fact.^° 

^~  Fulness  v.  Muck,  3  Hurl.          ^^  Sawyer     v.     Nichols,    40 
&     Nor.     909    (Bramwell,    B.,     Maine,  216. 
duhilanle).  ^9  Frazic  v.  Griffio,  8  Md.  54. 


34  QUESTIONS   OF   LAW   Al^TD   FACT.  [Paet  I. 

§  33.  In  the  Eastern  U.  S.  District  Court  of  Penn- 
sylvania, it  has  been  held  that  the  court  may  comment 
on  the  evidence,  provided  it  does  not  give  directions 
as  to  the  facts."^  The  court  say,  "  It  is  a  solecism  to 
say  that  a  judge  may  set  aside  the  verdict  of  a  jury  if, 
in  the  opinion  of  the  court,  it  be  contrary  to  evidence ; 
and  yet  that  it  is  an  invasion  of  the  right  of  the  jury 
over  the  facts,  if  the  court  should  present  their  views 
of  the  evidence  in  order  to  prevent  the  error,  instead 
of  correcting  it.  The  evidence  given  on  the  trial  was 
arranged  in  the  order  of  the  points  to  be  considered, 
and'  decided,  but  its  effect  was  left  fully  and  without 
prejudice  to  the  jury.  The  witnesses  were  named, 
and  the  circumstances  alluded  to  which  might  detract 
from,  or  give  weight  to,  their  testimony;  but  theu' 
credibility,  positive  and  comparative,  was  distinctly 
submitted  to  the  judgment  of  the  jury.""^  But  the 
court  should  express  no  opinion  as  to  the  sufficiency 
of  evidence,  or  assume  that  facts  involved  in  a  case 
are  proved.*'^ 

§  34.  As  to  questions  arising  under  foreign  law,  as, 
for  instance,  whether  there  was  slavery  in  Canada  in 
1760,  it  seems  these  are  to  be  determined  by  a  jury.^^ 

§  35.  As  to  actions  respecting  processes  of  the 
court,  it  is  held  in  Alabama  that,  on  a  motion  before 
a  justice  of  the  peace  against  a  constable  and  his  se- 
curities for  not  returning  an  execution,  which  motion 
was  carried  into  the  county  court  by  certiorari^  the 

60  U.  S.  V.  14  Packages,  Gil-  ^2  Reynolds  v.  Cox,  11  Ind. 
pin,  255,  and  U.  S.  v.  Sarchet,     268. 

ibid.  2T3.  ^^  Charlotte  v.  Chouteau,  25 

61  Ibid.  Mo.  465. 


Chap.  II]      RELATIOI^    OF    THE    COUBT   A^O)    JURY.  35 

proceeding  being,  under  the  statute,  summary,  the 
submission  to  a  jury  is  not  essential,  but  discretionary 
with  the  court,  unless  a  request  was  made  by  one  of 
the  parties.  If  the  court  should  submit  the  case,  w^ith- 
out  such  request,  it  would  not  be  error;  but  there  is 
no  obligation  to  do  so." 

But  in  IS'orth  Carolina  it  is  held  that  "  due  return  " 
means  a  proper  return,  made  in  proper  time,  and  that 
the  court  is  to  decide  the  propriety  of  the  return  it- 
self, lea^dng  to  the  jury  the  question  of  proper  time; 
and  it  was  remarked  that  "  proper  time  "  might  involve 
the  consideration  of  several  particulars,  as  whether  the 
return  was  made  to  the  clerk's  office  in  the  period  pre- 
scribed by  statute,  and  whether  the  sheriff  was  guilty 
of  any  negligence,  or  whether  he  was  prevented  by 
accident  or  necessity  from  filing  it,  and  so  was  excusa- 
ble for  failure.^ 


CHAPTER  n. 

Ckemin^al  Trials. 

§  36.  The  question  concerning  this  subject  mo;^t 
frequently  arising  in  our  courts,  is,  whether  the  jury 
are  judges  both  of  the  law  and  the  facts,  and  there- 
fore, whether  they  have  a  right  to  disregard  the  in- 
structions of  the  courts  or  not,  in  making  up  their 
verdict.     Some  of  the  courts  allow  an  unlimited  lati- 

^^  Condiy  et  al.  v.  Henley  et  ^^  Waughv.Brittain,4  Jones' 
al.  4  Stew.  &  For.  11.  Law,  471. 


36  QUESTIONS   OF   LAW  AXD   FACT.  TPart  I. 

tude  in  this  regard,  and  others  maintain  that  the  jury 
must  take  the  law  from  the  court,  and  be  governed  by 
the  instructions  precisely  as  in  civil  cases.  Some  have 
decided  first  one  way,  and  afterwards  another.  Some 
admit  that  the  jury  have  the  right  to  decide  both  law 
and  fact,  but  so  restrict  the  right  as  to  practically 
withdraw  it  again. 

In  the  United  States  v.  Morris '  it  is  held  that  the 
jury  are  bound  to  conform  to  the  instructions  of  the 
court  as  to  the  law,  and  so  the  counsel  could  not  bo 
allowed  to  argue  to  the  jmy  the  constitutionality  of 
the  fugitive  slave  law. 

In  South  Carolina  it  is  held  that  the  jury  are  bound 
to  take  the  law  from  the  court  in  capital  cases,  and  the 
court  remarked,  in  a  late  case,  that  if  the  judge  mis- 
state a  legal  principle,  it  is  easy  to  correct  it  by  an 
appeal ;  but  if  the  jury  misconceive  the  law,  there  is 
no  remedy.^  ' 

!N^ew  York,  with  some  wavering  and  self-contradic- 
tions, holds  the  same  doctrine.  And,  in  the  case  of 
Duffy  V.  The  People,^  the  matter  is  elaborately  dis- 
cussed as  folloAVS :  "  I  entertain  no  doubt  that  it  is  as 
much  the  duty  of  jurors  to  be  governed  by  the  instruc- 
tions of  the  court,  upon  legal  questions,  in  criminal,  as 
it  is  in  civil,  cases.  The  following  are  the  principal 
reasons,  which  lead  to  the  conclusion  that  the  power 
of  juries  should  be,  and  is,  thus  restricted:  1.  The  se- 
lection of  jurors  from  all  classes  of  people  whose  edu- 
cation and  business  cannot,  as  a  general  rule,  haA^e 
qualified  them  to  decide  legal  questions,  renders  it  un- 

^   1  Curtis,  53.  3  26  N.  Y.  591. 

8  State  V.  Drawdry,  14  Rich.  90. 


Chap.  II.]  CKIMINAL    TKIAI^S.  37 

reasonable,  as  well  as  apparently  unsafe,  to  require 
them  to  pass  upon  such  questions.  2.  If  jurors  were 
to  determine  the  law,  its  stability  would  be  subverted, 
and  it  would  become  ^as  variable  as  the  prejudices, 
the  inclinations,  and  the  passions  of  men.'  Every 
case  would  be  governed,  not  by  any  known  or  estab- 
lished rule,  but  by  a  rule  made  for  the  occasion.  Ju- 
rors would  become  not  only  judges,  but  legislators  as 
well.  3.  All  questions  in  regard  to  the  admission  and 
rejection  of  evidence,  being  questions  of  law,  are  re- 
quired to  be  decided  by  the  com^t.  If  jm-ors  are  t<^) 
decide  law  and  fact,  their  jurisdiction  should  extend 
to  these  questions,  which  often  control  the  verdict. 
4.  Wliere  the  jury  finds  the  facts  of  a  case  by  special 
verdict,  if  they  also  find  a  conclusion  of  law  different 
from  that  which  the  law  would  derive  from  the  same 
facts,  the  court  disregards  the  conclusion,  and  gives 
judgment  according  to  the  facts  found.  5.  If  the 
jury  find  a  verdict  in  a  civil  case  against  law,  the 
court  sets  it  aside.  That  the  same  is  not  done  in 
criminal  cases  is  owing,  I  think,  more  to  the  tender- 
ness of  the  common  law  towards  persons  accused  of 
crime  than  to  any  recognized  right  of  jurors  to  decide 
legal  questions.  6.  In  all  cases,  civil  and  criminal, 
where  only  legal  questions  are  raised,  as  by  demurrers 
to  pleadings,  demurrers  to  evidence,  special  verdicts, 
bills  of  exceptions,  and  motions  in  arrest  of  judgment, 
such  questions  are  decided  by  the  court,  and  not  by  the 
jury.  7.  The  fact  of  guilt  being  ascertained  and  de- 
clared by  the  jury,  the  court  determines  the  punishment 
which  the  law  prescribes  for  the  offence.  [Many  au- 
thorities here  given.]     The  unquestionable  power  of 


38  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

juries  to  find  general  verdicts  involving  both  law  and 
fact,  furnishes  the  foundation  for  the  opinion  that  they 
are  judges  of  the  law  as  well  as  of  the  facts,  and  gives 
some  plausibility  to  that  opinion.  They  are  not,  how- 
ever, compelled  to  decide  legal  questions,  having  the 
right  to  find  special  verdicts,  giving  the  facts,  and 
leaving  the  legal  conclusions  which  result  from  such 
facts  to  the  court.  Wlien  they  find  general  verdicts, 
I  think  it  is  their  duty  to  be  governed  by  the  instruc- 
tions of  the  court  as  to  all  legal  questions  involved  in 
such  verdicts.  They  have  the  power  to  do  otherwise; 
but  the  exercise  of  such  power  cannot  be  regarded  as 
rightful,  although  the  law  has  provided  no  means,  in 
criminal  cases,  of  reviewing  their  decisions,  whether 
of  law  or  fact,  or  of  ascertaining  the  grounds  upon 
which  their  verdicts  are  based." 

In  Massachusetts,  the  question  arose  whether  the 
jury  law  of  1855  made  the  jury  judges  of  the  law  and 
the  facts,  and  the  court  decided  that  it  was  merely 
declaratory,  and  made  no  change ;  or,  if  it  did  make  a 
change  therein,  it  was  therefore  unconstitutional  and 
void.*  For  the  legislature  could  not,  under  the  consti- 
tution, give  the  jury  any  such  power,  even  by  a  statute 
providing  also  that  causes  shall  be  tried  by  the  estab- 
lished forms  and  principles  of  law,  under  the  superin- 
tendence of  the  court,  who  should  decide  upon  the 
admission  of  evidence,  and  on  all  questions  of  law 
arising  during  the  progress  of  the  trial,  and  on  collat- 
eral and  incidental  proceedings,  and  should  charge 
the  jury,  allow  bills  of  exception,  and  grant  new  trials 

*  Commonwealth  v.  Rock,  10  Gray,  5. 


Chap.  II.]  CKIMrN^AL    TRIALS.  39 

in  cases  of  conviction.^  And  i;i  a  case  where  the  court 
instructed  the  jury  that  "  they  had  a  right  to  bring  to 
their  aid,  in  deciding  upon  the  evidence,  all  the  knowl- 
edge they  had  acquired,  and  all  the  information  they 
had  derived  from  any  sources  open  equally  to  the  ob- 
servation of  all,"  but  not  as  to  particular  facts ;  and 
also  that  the  jury  "  were  to  decide  the  case,  on  their 
oath,  according  to  the  evidence ;  they  had  received  the 
testimony  of  the  facts  from  the  witnesses  upon  the 
stand ;  and  the  court  now  instructed  them  that  tlie  sec- 
tion of  the  law  on  which  the  prosecution  was  founded 
was  unconstitutional ;  and  that  was  the  only  evidence 
of  the  law  introduced  into  the  case,  and  the  jury  were 
bound  to  consider  it  as  evidence  of  the  law,  as  they 
did  the  other  evidence  in  the  case  upon  the  matters 
submitted  to  them  to  decide,  and  they  would  try  the 
case  according  to  the  evidence;"  on  which  the  defend- 
ant excepted,  it  was  held  that  the  only  error  in  the 
instructions  was,  that  they  were  too  favorable  to  the 
defendant,  so  that  she  had  no  legal  cause  to  complain." 
And  the  whole  matter  was  reaffirmed  in  12  Gray,  29. 
In  Ohio,  it  is  held  that  the  jury  are  under  obligation 
to  conform  to  the  instructions  of  the  court.''  And  so 
in  Alabama.^  And  'New  Hampshire.^  It  was  former- 
ly so  held  in. Indiana,^"  but  the  reverse  prevails  now.^' 
In  Arkansas  the  court  say,  "  If  the  court  had  charged 

^  Commonwealth  v.  Authes,  ^  Batre    v.     State,    18    Ala. 

5  Gray,  185.    (Dewey  and  Thorn-  119. 

as,  J.J.,  dis.)  ^  Pierce   v.  State,  13  N.  H. 

^  Commonwealth      v.      Law-  119. 

rence,  9  Gray,  135.  ^^  2    and    4    Blackford,   151, 

'  Bobbins  v.  State,  8  0.  St.  247. 

131.  "  10  Ind.  276,  503. 


40  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

the  jury  that  they  were  bound  to  receive  the  law  when 
given  from  the  court,  but  that,  in  cases  where  the  is- 
sue involves  a  mixed  question  of  law  and  fact,  they 
are  necessarily  the  judges  of  the  law  and  testuuony, 
because  they  must  apply  the  law  to  the  testimony,  in 
oi'der  to  determine  the  criminal  intent  with  which  the 
act  was  done,  it  would  have  saved  to  the  defendant 
the  full  benefit  of  his  right  to  an  impartial  trial  by 
jury,  and  the  court  would,  at  the  same  tune,  have 
maintained  its  own  dignity  and  its  constitutional  au- 
thority. If,  in  any  case,  the  jury  are  subject  to  the 
outside  pressure  of  popular  excitement  against  the 
accused,  the  right  of  the  court  to  declare  what  the  law 
is,  and  the  duty  of  the  jury  so  to  receive  and  apply  it 
to  the  facts  they  find  to  be  proven,  may  be  the  only 
shield  and  protection  that  are  left  to  liim.  The  case 
here  does  not  call  for  any  discussion  of  the  proposi- 
tion that  the  jury  are  the  judges  of  the  law  and  the 
evidence.  Supposing  it  to  be  an  error,  it  is  one  of 
which  the  appellant  cannot  complain;  and  we  only 
notice  the  charge,  because,  if  taken  in  the  literal  and 
commonly  received  acceptation  of  the  terms  used,  it 
becomes  a  heresy  that  is  subversive  of  all  law."  '^ 

In  Vermont,  on  the  contrary,  it  is  held  that  "  the 
history  of  English  criminal  jurisprudence  furnishes 
abundant  evidence,  not  only  of  the  necessity  of  watch- 
fulness, but  also  that  the  power  of  juries  to  determine 
the  law  as  well  as  the  facts,  in  criminal  trials,  was  es- 
sential to  the  protection  of  innocence  and  the  preser- 
vation  :)f  liberty.     In  trials  for  state  ofiences,  espe- 

12  Pleasant  v.  State,  8  Eng.  3T2. 


Chap.  II.]  CKI]VirN"AL    TEIALS.  41 

cially,  the  bias  of  the  judges  was  always  strongly  in 
favor  of  the  crown;  and,  in  most  cases,  their  partiality 
was  such  that  there  was  no  security  against  the  con- 
viction of  any  person  the  government  might  accuse, 
but  the  integrity  and  mdependence  of  jurors.  The 
question  of  the  guilt  or  innocence  of  the  accused  be- 
ing compounded  of  law  and  fact,  it  was  in  the  power 
of  the  court  to  shape  the  law  to  meet  the  proof  j  and 
if  the  jury  would  but  submit  to  the  direction  of  the 
judges  in  regard  to  the  law,  there  was  little  or  no 
chance  for  the  escape  of  the  prisoner,  however  weak 
the  evidence  might  be.  Of  this,  numerous  examples 
might  be  given;  but  they  are  too  well  known  to  the 
readers  of  English  history  to  make  it  necessary  to  spe- 
cify them. 

"It  is  this  supposed  independence  of  jurors,  in  crim- 
inal cases,  that  has  commended  the  English  system  of 
jury  trial  to  the  fa^  or  and  eulogium  of  enlightened 
foreigners,  and  has  procured  its  introduction  into  some 
of  the  more  liberal  governments  on  the  continent.  The 
celebrated  De  Tolme,  in  Ms  work  on  the  Constitution 
of  England,  which  he  appears  to  have  thoroughly 
studied,  published  in  1784,  holds  the  following  lan- 
guage: 'As  the  main  object  of  the  institution  of  trial 
by  jury  is  to  guard  the  accused  persons  agamst  all 
decisions  whatsoever  by  men  invested  with  any  per- 
manent official  authority,  it  is  not  only  a  settled  prin- 
ciple that  the  opinion  wliich  the  judge  delivers  has  no 
weight  but  such  as  the  jury  choose  to  give  it,  but 
theii*  verdict  must  besides  comprehend  the  whole  mat- 
ter in  trial,  and  decide  as  well  upon  the  fact  as  upon 
the  point  of  law  that  may  arise  out  of  it;   in  other 


42  QUESTIONS    OF   LAW   A^U   FACT.  [Part  1. 

words,  they  must  pronounce  both  on  the  commission 
of  a  certain  fact  and  on  the  reason  which  makes  such 
fact  to  be  contrary  to  law.'  It  is  obvious  that  the 
Enghsh  system  of  jury  trial  would,  in  the  estimation 
of  this  enlightened  commentator,  be  shorn  of  its  chief 
value  if  the  right  of  deciding  upon  the  criminality  of 
the  fact  proved  were  wi'ested  from  the  jurors  and 
transferred  to  the  judges."  ^^ 

In  Georgia,  it  is  held  that  the  jury  are  not  bound 
by  the  opinion  of  the  court  as  to  the  law.'^ 

In  Maryland,  the  clause  of  the  constitution,  "In 
the  trial  of  all  criminal  causes,  the  jury  shall  bo  the 
judges  of  law  as  well  as  fact,"  has  been  held  merely 
declaratory,  and  hence  as  maldng  no  change  in  the 
law.^^  At  first  view,  this  looks  like  an  evasion  by  the 
court;  but  the  court  explain  thus:  "The  debates 
which  took  place  m  the  convention  that  framed  the 
constitution  show  what  were  the  reasons  that  induced 
the  adoption  of  the  section.  It  is  apparent  from  these 
debates  that  opposing  views  as  to  the  powers  of  a 
jury  in  a  criminal  case  prevailed  in  different  parts  of 
the  state,  and  that  to  guard  in  the  future  against  such 
conflict,  the  provision  was  inserted  in  the  constitution. 
It  was  well  kno^ai  that  some  members,  both  of  the 
judiciary  and  the  profession,  held  that  juries,  in  crim- 
inal cases,  were  the  judges  of  law  as  well  as  of  fact; 
whilst  others  held  a  directly  contrary  opinion.  It  is 
not  now  important  to  inquire  on  which  side  there  was 
a  preponderance  of  authority  and  reason.     When  the 

13  State  V.  Crateau,  23  Vt.  21.  i*  McPherson  v.  State,  22  Ga, 
(Bennett,  J.,  dis.)  478. 

15  Franklin  v.  State,  12  Md.  245. 


Chap.  II.]  CRXMIN^AL    TRIALS.  iS 

meaiiing  of  the  terms  is  fixed,  there  is-  an  end  of  con- 
troversy in  regard  to  the  relative  powers  of  conrt 
and  jury. 

"  So  far  as  I  know,  there  is  no  instance  in  which  a 
court  admitted  that  the  words  ^judges  of  law  as  Avell 
as  fact '  authorized  the  jury  to  decide  on  the  constitu- 
tionality of  a  law.  With  those  who  insisted  on  the 
enlarged  power  conferred  by  the  words  in  our  consti- 
tution, there  was  no  pretence  that  it  authorized  a 
judgment  by  a  jury  of  the  constitutionality  of  an  act 
of  Congress  or  of  the  state  legislature.  All  they  con- 
tended for  was,  that  in  a  cruninal  case  the  jury  were 
not  bound  to  abide  by  the  interpretation  of  the  court 
of  the  meaning  of  a  law,  but  were  free  to  construe 
and  apply  it  according  to  then*  own  judgments.  They 
never  pretended  that  the  jury  had  the  right  to  decide 
on  the  constitutionality  of  an  act  defining  murder, 
arson,  or  any  other  crime;  but  that  they  had  the 
right  to  afiix  their  own  meaning  on  the  particular  law, 
and  to  determine  for  themselves  whether  the  facts 
proven  brought  the  traverser  within  that  meaning. 
The  words  of  the  constitution  have  no  greater  signif- 
icance since  then'  incorporation  into  the  organic  law 
than  they  had  previously;  and  I  think  I  have  given 
to  them  the  broadest  latitude  ever  sanctioned  or  seri- 
ously countenanced  by  any  respectable  authority." 
This  very  plainly  and  conclusively  sets  forth  a  restric- 
tion upon  the  judgment  as  to  law  of  a  jury  in  a  crim- 
inal case,  namely,  that  they  cannot  pronounce  on  the 
constitutionality  of  a  law;  and  the  decision  of  the 
court  was  called  for  by  an  exception  to  the  ruling  of 
the  court  below  in  refusing  to  allow  counsel  to  argue 


44  QUESTIONS   OF   LAW   AND   FACT.  [Paut  I. 

to  the  jury  the  question  of  constitutionality.  But  to 
me  it  would  seem  this  very  restriction,  with  others  of 
a  similar  nature,  determines  the  whole  matter  against 
the  power  of  the  jury  to  judge  the  law  independently 
of  the  court. 

In  Mississippi,  the  doctrine  is  denied ;  and  the  court 
say,  "  In  many  of  the  colonies,  umnediately  preceding 
the  revolution,  the  arbitrary  temper  and  unauthorized 
acts  of  the  judges  holding  office  directly  from  the 
crown,  made  the  independence  of  the  jury  in  law,  as 
well  as  fact,  a  matter  of  great  popular  importance. 
From  this  cause,  the  doctrine  embodied  in  the  charge 
under  consideration  grew  into  recognition,  and  for 
some  tune  after  the  adoption  of  the  federal  constitu- 
tion it  was  generally  received.  It  is  unnecessary  to 
notice  the  course  of  judicial  decisions  on  this  subject. 
It  is  scarcely  necessary  to  state  that,  in  no  great  while 
after  Frei's  case,  in  which  the  doctrine  was  fully  rec- 
ognized by  the  court,  who  charged  that '  the  jury  are 
to  decide  on  the  present,  and  in  all  criminal  cases, 
both  the  law  and  the  facts,  on  their  consideration  of 
the  whole  case,'  the  courts,  one  after  another,  aban- 
doned the  doctrme.*  In  England,  it  has  always  been 
held  that  the  courts  were  as  much  the  judges  of  the 
law  as  in  civil  cases.f  And  this  doctrine  is  now  un- 
doubtedly sustained  by  the  great  weight  of  authority. 
(Am.  Cr.  Law,  896.)  "  '' 

*  But  the  prog-ress  of  some  courts  has  been  in  the  opposite 
direction  ;   as,  for  instance,  in  Indiana. 

f  True  ;  but  held  there  that  in  both  civil  and  criminal  cases  the 
jury  were  judges  of  the  law,  so  that  the  aflSrmation  is  hardly  in 
pcint  here.  

16  Williams  v.  State,  32  Miss.  396. 


Chap.  II.]  CEIMDs-AL    TKIALS.  45 

The  doctrine  is  denied  in  Kentncl^y;  and  the  court 
say,  "Juries  have  the  power,  but  not  the  right,  to 
disregard  the  law  as  expounded  to  them  by  the  court, 
and  render  a  verdict  of  not  guilty  in  a  case  where  the 
law,  if  correctly  administered,  would  result  in  a  con- 
viction; and  their  decision  in  such  a  case  will  be  iinal 
because  a  new  trial  cannot  be  awarded  by  the  court. 
But  such  an  improper  exercise  of  power  on  their  part 
does  not  tend  to  prove  that  they  are  not  bound  to 
consider  the  instructions  of  the  court  as  containing 
the  law  of  the  case."  ^^ 

In  Iowa,  the  jury  may  determine  law  and  fact,  but 
under  instructions  by  the  court.^^  In  Tennessee,  this 
charge  was  sustained :  "  The  jury  are  not  only  the 
judges  of  the  facts  in  the  case,  but  they  are  the  judges 
of  the  law.  The  court  is  a  witness  to  them  as  to 
what  the  law  is ;  after  the  court  has  stated  the  law  to 
them,  then,  if  they  believe  it  to  be  different,  they  can 
disregard  the  opinion  of  the  court.  If  the  judge  is 
against  the  defendant,  his  judgment  can  be  reversed 
by  the  supreme  court;  if  the  jury  errs  in  favor  of  the 
defendant,  their  judgment  is  final,  and  cannot  be  re- 
versed in  the  supreme  court."  ^^ 

In  Louisiana,  it  is  held  that  "  it  doubtless  would  be 
a  safe  rule  for  the  jury  to  take  the  law  from  the  judge 
as  their  guide,  but  they  are  not  bound  to  do  so."  ~° 
And  if  the  court  refuses  to  charge  the  jury  that  they 

^'^    Commonwealth    v.    Van  ^^  Nelson   v.    State,  2  Swan, 

Tuyl,  1  Met.  5.  486. 

18   Foi-shee    v.    Abrams,    2  2<^  State  ?'.  Jurche,  17  La.  An. 

Clarke  (Iowa),  580.  12. 


46  QUESTIONS   OF   LAW   AND   FACT.  [rART  I. 

are  judges  of  the  law  and  fact,  their  verdict,  in 
case  of  conviction,  will  be  set  aside  on  appeal.'-^ 

In  Illinois  it  is  held  that  the  jury  are  uncontrolla- 
ble judges  of  the  law  and  facts.  But  Justice  Walker, 
in  Fisher  v.  People,  delivered  a  very  cogent  dissenting 
opinion,  of  considerable  length,  coinciding  with  the 
remarks  of  Judge  Story,  quoted  below.  In  the  same 
case,  the  majority  of  the  court  say,  "  The  power  is 
conferred  in  the  most  unqualified  terms,  and  has  no 
limits  which  we  can  assign  to  it.  We  have  said,  in 
the  case  of  Schnier  v.  People,  ante,  p.  17,  that  being 
judges  of  the  law  and  the  fact,  they  are  not  bound  by 
the  law  as  given  to  them  by  the  court,  but  can  assume 
the  responsibility  of  deciding,  each  juror  for  himself, 
what  the  law  is.  If  they  can  say,  uj^on  their  oaths, 
that  they  know  the  law  better  than  the  court,  they 
have  the  power  to  do  so.  If  they  are  prepared  to  say 
the  law  is  different  from  what  it  is  declared  to  be 
b}^  the  court,  they  have  a  perfect  legal  right  to  say  so, 
and  find  the  verdict  according  to  their  OAvn  notions 
of  the  law.  It  is  a  matter  between  their  consciences 
and  their  God,  with  whic^h  no  power  can  interfere. 
There  can  be  no  apj^rehension  in  so  looping  this 
power,  for  an  erroneous  decision  of  the  jury  against  a 
prisoner  can  be  corrected  by  the  power  remaining  in 
this  coui't  to  award  a  new  trial."  '" 

I  close  this  review  (which  I  have  thought  needful 
to  present  somewhat  fully)  with  the  remarks  of  the 
justly-renowned  Judge  Story,  uttered  in  the  year 
1835,  in  charging  a  jury  in  the  United  States  Circuit 

21  State  V.  Salika,  18  La.  An.  22  pighpr   v.    People,    23    III. 

35.  294. 


Cn.vF.  II.]  CRIMrN'AL    TKIALS.  47 

Court.  "  Before  I  proceed  to  the  merits  of  tliui  case, 
I  wish  to  say  a  few  words  upon  a  point  suggested  by 
the  learned  counsel  for  the  prisoner  [Daniel  W«ibster 
and  C.  P.  Curtis],  upon  which  I  have  had  a  decided 
opinion  during  my  whole  professional  life.  It  is,  that 
in  criminal  cases,  and  especially  in  capital  cases,  the 
jury  are  the  judges  of  the  law,  as  well  as  of  the  fact. 
My  opinion  is,  that  the  jury  are  no  more  judges  of  the 
law  in  a  capital  or  other  criminal  case,  upon  the  plea 
of  not  guilty,  than  they  are  in  every  civil  case  tried 
upon  the  general  issue.  In  each  of  these  cases,  their 
verdict,  when  general,  is  necessarily  compounded  of 
law  and  of  fact,  and  includes  both.  In  each,  they 
must  necessarily  determine  the  law,  as  well  as  the 
fact.  In  each,  they  have  the  physical  power  *  to  dis- 
regard the  law  as  laid  down  to  them  by  the  court. 
But  I  deny  that  in  any  case,  civil  or  criminal,  they 
have  the  moral  right  to  decide  the  law  according  to 
their  own  notions  or  pleasure.  On  the  contrary,  I 
hold  it  the  most  sacred  constitutional  right  of  every 
party  accused  of  a  crime,  that  the  jury  should  respond 
as  to  the  facts,  and  the  court  as  to  the  law.  It  is  the 
duty  of  the  court  to  instruct  the  jury  as  to  the  law, 
and  it  is  the  duty  of  the  jury  to  follow  the  law,  as  it 
is  laid  do^vn  by  the  court.  This  is  the  right  of  every 
citizen,  and  it  is  his  only  protection.  If  the  jury  were 
at  liberty  to  settle  the  law  for  themselves,  the  effect 
w^ould  be  not  only  that  the  law  itself  would  be  most 
uncertain,  from  the  different  views  which  different 
jui'ies   might  take  of  it,  but,  in  case  of  error,  there 

*  Rathe/'  mental  power,  I  suppose. 


48  QUESTIONS   OF   LAW  AXD   FACT.  [Fakt  I. 

would  be  no  remedy  or  redress  by  the  injured  party ; 
for  the  court  would  not  have  any  right  to  review,  as 
it  had  been  settled  by  the  jury.*  Indeed,  it  Avould  be 
almost  impracticable  to  ascertain  what  the  law,  as 
settled  by  the  jury,  actually  was.  On  the  contrary, 
if  the  court  should  err  in  laying  do^wn  the  law  to  the 
jury,  there  is  an  adequate  remedy  for  the  injured 
party  by  a  motion  for  a  new  trial,  or  a  wi'it  of  error, 
as  the  nature  of  the  jurisdiction  of  the  particular 
court  may  require.  Every  person  accused  as  a  crim- 
inal, has  a  right  to  be  tried  according  to  the  law 
of  the  land;  the  fixed  law  of  the  land;  and  not  by 
the  law  as  a  jury  may  understand  it,  or  choose,  from 
wantonness,  or  ignorance,  or  accidental  mistake  to  in- 
terpret it.  If  I  thought  that  the  jury  were  the  proper 
judges  of  the  law  in  criminal  cases,  I  should  hold 
it  my  duty  to  abstain  from  the  responsibility  of  stat- 
ing the  law  to  them  on  any  such  trial.  But,  believing 
as  I  do  that  every  citizen  has  a  right  to  be  tried  by 
the  law,  and  according  to  the  law,  —  that  it  is  his 
privilege  and  truest  shield  against  oppression  and 
wrong,  I  feel  it  my  duty  to  state  my  ^dews,  fully  and 
openly,  on  the  present  occasion.  It  is  not,  indeed,  an 
occasion  on  which  there  is  any  reason  to  doubt  but 
that  an  intelligent  jury  can  understand  the  principles 
of  law  applicable  to  the  subject,  as  well  as  the  court; 
for  they  are  the  principles  of  common  sense.  And  as 
little  reason  is  there,  in  my  view,  to  suppose  they 

*  This  seems  inconclusive,  since  the  court  might  review  the 
decision  of  the  jury  on  law,  as  well  as  now  upon  fact.  Verdicts 
may  be  set  aside  because  not  according  to  the  evidence. 


Chap.  II.j  CREMrN^AL   TRIALS.  49 

can  operate  injuriously  to  the  real  merits  of  the  case 
of  the  prisoner."  ^^ 

On  the  whole,  the  weight  of  reason  and  authoricy 
appear  decidedly  to  support  the  views  of  those  who 
deny  the  unrestricted,  uncontrollable  right  of  a  jury 
to  decide  the  law  in  a  criminal  case.  •  Yet  all  agree 
that,  if  a  jury  usurp  such  a  right,  the  matter  is  remedi- 
less, where  the  prisoner  is  thereon  discharged;  and 
so  far  the  only  restraint,  really  or  practically,  in  oper- 
ation, is  a  moral,  not  a  legal  one.  The  negative  doc- 
trine may,  however,  often  be  of  practical  benefit  in 
cases  of  conviction,  it  affording  a  ground  of  appeal, 
when  perhaps  there  is  no  other.  There  seems,  too, 
an  inherent  incongruity,  moreover,  in  the  position 
that  the  jury  are  judges  of  the  law,  and  yet  are 
required  to  be  informed  by  the  court  what  the  law  is, 
the  judge  being,  as  one  court  has  expressed  it,  a  wit- 
ness in  the  case,  so  far,  as  an  expert,  for  the  infor- 
mation of  the  jury.  In  a  measure  the  jury  does 
determine  both  law  and  fact,  in  all  cases,  civil  and 
criminal;  but  that  they  do  so  with  any  better,  or 
more  extended  right  in  the  latter,  than  in  the  former, 
is  certainly  more  than  doubtful. 

§  37.  An  objection  to  a  juror,  if  made  after  the 
trial,  concerning  matters  existing  before  the  trial,  is 
held,  in  Virginia,  to  be  addressed  to  the  sound  dis- 
cretion of  the  court.  Thus,  in  Jones's  case,  wherein 
the  charge  was  murder,  three  bystanders  were  called 
as  jurors,  and  examined  as  to  their  competency  in  the 
usual  manner.     One  said  he  had  heard  part  of  the 

2s  Onited  States  v.  Baptiste,  2  Sumner,  C.  C.  R.  243. 

4 


50  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

evidence;  the  other  two  knew  nothing  except  from 
rumor;  all  declared  they  had  no  prejudice  against  the 
prisoner,  and  could  try  the  case  fairly  and  impar- 
tially. They  were  sworn  in  on  the  consent  of  the 
prisoner.  On  conviction,  the  prisoner  excepted  to 
these  jurors,  because  of  their  pre-existent  influences, 
and  brought  witnesses  to  prove  prior  expressions 
unfavorable  to  the  prisoner,  but  nothing  further  than 
what  the  jurors  had  admitted  on  the  voir  dire.  The 
court  certified  the  matter  to  the  court  above,  judg- 
ment being  suspended  meanwhile,  for  the  decision 
thereon.  The  General  Court  directed  sentence  ac- 
cording to  the  verdict  in  the  case,  and  gave  the  ruling 
stated  above,  that  the  sound  discretion  of  the  court 
should  be  brought  into  requisition  in  all  such  cases.^* 

§  38.  In  Connecticut  it  was  held  that  the  court, 
even  on  agreement  of  parties,  cannot  try  a  criminal 
case  without  a  jury,  and  where  the  court,  on  such  an 
agreement,  found  the  facts,  and  certified  the  case  to 
the  court  above  for  advice,  the  court  above  refused  to 
entertain  it.^^  In  Texas,  it  has  been  held  that  cases 
of  misdemeanor,  punishable  by  fine,  are  an  exception 
to  this  rule.~^ 

§  39.  It  has  been  held  that  a  juror  may  be  with- 
drawn or  discharged  for  cause,  before  verdict.  And 
the  court  remarked,  in  United  States  v.  Morris,^^  ^^  The 
rule  of  the  common  law,  as  shown  by  the  defendant's 
counsel,  is,  that  neither  party  has  a  right  of  challenge, 
after  the  juror  is  sworn,  for  cause  then  existing.    But 

24  Leigh's  R.  614.  26  state  v.  Jones,  18  Tex.883. 

25  State  V.   Maine,  27  Conn.         27  1  Curtis  C.  C.  R.  -SP 
281. 


Chap.  II I  CRXMESrAL   TELALS.  51 

it  by  no  means  follows  that  it  is  not  in  the  i)ower  of 
the  court,  at  the  suggestion  of  one  of  the  parties,  or 
upon  its  own  motion,  to  interpose  and  withdraw  from 
the  panel  a  juror  utterly  unfit,  in  the  apprehension  of 
every  honest  man,  to  remain  there.  Suppose  a  pris- 
oner on  trial  for  his  life  should  inform  the  court 
that  a  juror  had  been  bribed  to  convict  him,  that  the 
fact  was  unlaiown  to  him  when  the  juror  was  sworn, 
and  that  he  had  just  obtained  plenary  evidence  of  it, 
which  he  was  ready  to  lay  before  the  court,  is  the 
court  compelled  to  go  on  with  the  trial  ?  Suppose 
the  judge,  during  the  trial,  obtains  by  accident  per- 
sonal knowledge  that  one  of  the  jurors  is  determined 
to  acquit,  or  convict,  without  any  regard  to  the  law 
or  the  evidence,  is  he  bound  to  hold  his  peace?  In 
my  judgment,  such  a  doctrine  would  be  as  wide  of 
the  common  law  as  it  would  be  of  common  sense  and 
common  honesty.  The  truth  is  that  this  rule,  like  a 
great  many  other  rules,  is  for  the  orderly  conduct  of 
business.  There  must  be  some  prescribed  order  for 
the  parties  to  make  their  challenges,  as  well  as  to  do 
almost  every  thing  else  in  the  course  of  a  trial.  As 
matter  of  right,  neither  party  can  deviate  from  this 
order.  And  it  is  the  duty  of  the  court  to  enforce 
these  rules,  which  are  for  the  general  good,  even  if 
they  occasion  inconvenience  and  loss  in  particular 
cases.  But  there  goes  along  with  all  of  them,  the 
great  principle  that,  being  designed  to  promote  the 
ends  of  justice,  they  shall  not  be  used  utterly  to  sub- 
vert and  defeat  it ;  being  intended  as  a  fence  against 
disorder,  they  shall  not  be  turned  into  a  snare  ; 
they  do  not  tie  the  hands  of  the  court  so  that  when, 


52  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

in  the  sound  discretion  of  the  court,  the  pubhc  justice 
plainly  requires  its  interposition,  it  may  not  interpose ; 
and  it  would  be  as  inconsistent  with  authority,  as 
with  the  great  interests  of  the  community,  to  hold  the 
court  restrained.  [English  authority  is  here  cited.] 
But  the  interposition  of  the  court  may  be  placed  on 
even  higher  ground,  suppoi'ted  by  authority  which,  in 
this  court,  is  decisive.  In  United  States  v.  Percy,  9 
Wheaton,  579,  the  question  came  before  the  Supreme 
Court  whether  it  was  in  the  poAver  of  the  Circuit 
Court  to  discharge  a  jury  in  a  capital  case,  and  after- 
wards put  the  prisoner  on  trial  by  another  jury.  The 
distinction  between  capital  cases  and  misdemeanors, 
under  the  provisions  of  the  constitution  of  the  United 
States,  cited  by  the  defendant's  counsel,  is  very  plain ; 
yet,  speaking  even  of  capital  cases,  the  court  sa3% 
^  We  thmk  that  in  all  cases  of  this  nature,  the  law 
has  invested  courts  of  justice  with  authority  to  dis- 
charge a  jury  from  giving  any  verdict,  whenever,  in 
their  opinion,  taMng  all  the  circumstances  into  con- 
sideration, there  is  a  manifest  necessity  for  the  act; 
or  the  ends  of  public  justice  would  otherwise  be  de- 
feated. They  are  to  exercise  a  sound  discretion  on 
the  subject,  and  it  is  impossible  to  define  all  the  cir- 
cumstances which  would  render  it  proper  to  interfere.' 
That  a  court  would  interfere  far  more  readily  in  a 
case  of  misdemeanor  there  can  be  no  doubt,  and  it  is 
so  asserted  in  terms  by  Story,  J.,  in  United  States  v. 
Coolidge,  2  Gall.  364." 

§  40.  But  the  court  must  receive  a  verdict  actually 
rendered,  even  if  regarding  it  as  contrary  to  the  evi- 
dence.    It  has  no  power  to  send  out  a  jury  to  recon- 


Chap.  II]  CRIMINAL.    TiUALS.  53 

sider  their  verdict,  as  English  courts  could  formerly 
do.^ 

§  41.  As  to  the  plea  of  autrefois  convict  or  acquit 
it  is  held,  in  N^ew  York,  that  it  must  go  to  the  jury.-'-' 
But  in  Vermont,  it  is  held  that,  unless  there  is  a  ques- 
tion of  the  identity  of  the  party,  or  some  such  matter 
of  fact,  a  former  conviction  [and  of  course  acquittal] 
is  a  pure  question  of  law.^° 

§  42.  An  arbitrary  discharge  of  a  juror  in  a  crimi- 
nal proceeding  after  impanelling,  and  where  there  is 
no  proper  cause  for  the  exercise  of  such  a  discretion 
upon  the  part  of  the  judge,  is  held,  in  Xew  York,  a 
bar  to  any  subsequent  trial  on  the  same  indictment.*^^ 
And  so  in  Tennessee.^^  And  this  is  the  settled  law 
beyond  doubt,  although  the  authorities  all  agree  as 
to  the  right  of  discharging  jurors  for  cause  before 
verdict,  as  above  set  forth."^^ 

§  43.  On  circumstantial  evidence,  it  is  the  province 
of  the  jury  to  find  the  question  of  guilt;  and  it  is 
error  for  the  coui't  to  charge  that  the  circumstances, 
if  true,  established  guilt,  or  that  if  they  believed  the 

28  State  V.  Ostrauder,  30  Mo.  Barrett,  2  Caines,  308  ;    People 

20.  V.    Green,    13    Wend.    55,    57; 

^  Grant  v.  People,  4  Parker's  State  v.  Waterhouse,  Mart.   & 

Crim.  K.  534.  Ferg".  278  ;  Mary  C.  Newton,  66 

35  State   V    Haynes,   &c.,   36  E.  C.  L.  R.  716^  People  ?^.  God- 

Vt.  671.  win,    18   J.   R.    201  ;    Common- 

3^  Grant  v.  People,  4  Parker's  wealth  v.    Cook,     6    Searg.    & 

Crini.  R.  532.  Rawle,  577  ;    State  v   Epbraim, 

32  Mahala  v.  State,  10  Yerg.  2   Dev.   &   Bat.  162 ;    2    Gr.   & 
682.  Wat.  on  New  Tr.  105  ;    United 

33  People  V.  Alcott,  21  Johns.  States  v.  Pedro  Gilbert,  2  Sumn, 
Cases,  301 ;  People  v.  Goodwin,  60. 

18  Johns,    R.    187  ;     People   v. 


54  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

witnesses,  the  case  is  clearly  witliin  one  of  the  degrees 
of  manslaughter  J  and  it  is  for  the  jury  to  say  which 
degree."^* 

§  44.  In  a  case  of  perjury,  the  materiality  of  a  false 
statement  is  held,  in  Mississippi,  to  be  a  question  for 
the  court;  and  it  is  error  to  submit  it  to  the  consider- 
ation of  a  jury.^^ 

§  45.  The  jmy  are  to  determine  the  weight,  grade, 
and  effect  of  confessions  adduced  in  evidence.  And 
so,  in  a  trial  for  larceny,  where  the  evidence  was 
chiefly  made  up  of  confessions,  it  w^as  held  error  to 
instruct  the  jury  that  "the  confessions  of  the  ac- 
cused of  his  guilt,  when  confirmed  by  circumstances, 
become  the  highest  evidence  of  his  guilt;  and  the  jury 
have  a  right  to  receive  a  portion  of  the  confession  and 
reject  other  portions,  if  the  attendant  circumstances, 
in  their  opinion,  warrant  such  rejection,"  —  this  in- 
struction being  regarded  as  assuming  that  the  state- 
ments of  the  accused  amounted  to  a  confession  of 
guilt,  and  as  dii'ecting  the  jury  concerning  the  effect, 
grade,  and  weight  of  testimony."*^ 

^  Breen  v.  People,  and  Pfor-        35  Cathran  v.  State,  39  Miss, 
ner  v.  People,  4  Parker's  Crim.     541. 

R.  380  and  658.  26  Hagett  v.  State,  40  Miss. 

622. 


Chap.  III.]  OF  WBITTEN  INSTRUMENTS.  55 


CHAPTER  m. 

CONSTEUCTION   OP  WRITTEN  INSTRUMENTS. 

The  general  principles  relating  to  our  subject 
being  thus  set  forth  in  the  two  preceding  chapters, 
what  follows  will  be  largely  illustrative  of  the  appli- 
cation of  these  pi-inciples,  by  showing  under  what 
circumstances  .disputes  arose  as  to  the  matters  to  be 
submitted  respectively  to  the  court  and  jury,  and  how 
the  points  were  decided  with  regard  to  those  circum- 
stances. 

§  46.  The  general  principle  is  well  settled  to  be, 
that  the  construction  of  the  terms  of  an  instrument  is 
matter  of  law  for  the  court.^  And  the  letters  and 
figures  thereof.^  And  where  it  is  a  letter  embracing 
a  contract,^  or  several  letters  in  series  of  correspond- 
ence.* And  deeds  or  patent  for  land.^  And  written 
aflidavit.''  And  lost  instruments,  where  the  contents 
are  proved  by  parol.''  Also  the  legal  effect  of  an 
instrument.^ 

^  Caldwell  V.  Dickson,  26  Mo.  *  Valkenburg  v.   Rogers,   18 

61 ;    Doe    ex   dem.   Holman    v.  Mich,  190. 

Crane,   16   Ala.   580;    Kidd    v.  ^  Cook  v.  Carroll,  6  Md.  111. 

Cromwell,  17  Ala.  648.  ^  Long    v.    Rogers,    19    Ala. 

2  Riley  V.  Dickens,  19  111.  30.  321. 

3  Ranney  v.  Higby,  5  Wis.  '•  Berwick  v.  Horsefall,  4  C. 
70;    United  States  v.   Shaw,  1  B.  (N.  S.)  450. 

Cliff.  321  8  Carpentier    v.   Thiston,    24 

Cal.  285. 


56  QUESTIONS   OF   LAW   AND   FACT.  [Paet  I. 

§  47.  This  construction,  however,  is  chiefly  con- 
fined to  the  meaning  of  the  words  and  the  grammat- 
ical construction  of  the  instrument.  "  Ordinarily,  the 
meaning  of  words,  and  the  grammatical  construction 
of  the  English  language,  so  far  as  they  are  established 
by  the  rules  and  usages  of  the  language,  are  pi'ima 
facie  matter  of  law,  to  be  construed  and  passed  upon 
by  the  court.  But  language  may  be  ambiguous,  and 
used  in  different  senses;  or  general  words  in  par- 
ticular trades  and  branches  of  business  may  be  used 
in  a  new,  peculiar,  or  technical  sense,  and  therefore, 
in  some  instances,  evidence  may  be  received  from 
those  who  are  conversant  with  such  branch  of  busi- 
ness, and  such  technical  or  peculiar  use  of  language, 
to  explain  and  illustrate  it.  (Brown  v.  Brown,  8  Met. 
576.)  '  If  the  obscui'ity  arises  from  the  obscurity  of 
the  writing  itself,  it  is  determined  by  the  court  alone ; 
but  questions  of  custom,  usage,  and  actual  intention, 
and  meaning  derived  therefrom,  are  for  the  jury.'  (2 
Phil.  Ev.  §  280.)  "^  So,  if  no  language  is  used  out 
of  the  ordinary  signification,  and  there  are  no  tech- 
nical terms,  or  terms  of  art  requiring  to  be  explained 
by  extrinsic  evidence,  the  construction  is  for  the 
court.'*'  And  an  ambiguity  arising  from  the  phrase- 
ology cannot  be  explained  by  parol  evidence,  but  only 
that  arising  from  extrinsic  matter.  This  is  the  settled 
rule  everywhere. 

§  48.  Where  one  instrument  is  explained  by  an- 
other, it  is  for  the  court  to  construe  them  together, 
and  direct  the  jury  to  find  in  accordance  with  the 

^  Prather    u,    Ross,   17    Ind.  ^'^  Eman  v.  Brown,  8  Minn. 

499.  520. 


Chap.  III.]  OF   WKITTEIsT   INSTRUMENTS.  57 

construction;  as  where  a  deed  is  made  in  pursuance 
of  a  written  contract  which  is  adduced  to  explain  the 
deed.'^  Where  the  instrument  is  unambiguous,  the 
court  is  to  direct  the  verdict,  and  may  refuse  to  sub- 
mit to  the  jury  whether  the  consideration  of  a  note 
was  illegal,  when  it  plainly  appears  to  be  so  on  its 
face,  or  admit  evidence  to  explain  away  the  illegal 
intent.^"  And  where  the  facts  as  to  the  delivery  of  a 
deed  are  undisputed,  the  legal  effect  of  those  facts  is 
for  the  court  to  determine. ^^ 

§  49.  But  where  a  wi'itten  instrument  is  offered  in 
evidence  of  a  fact,  or  where  it  is  to  be  considered  in 
connection  with  the  situation  of  the  parties,  or  with 
reference  to  other  facts  proved  by  parol,  it  is  to  go 
to  the  jury  for  construction  as  a  link  in  the  chain  of 
evidence  ;  as  where  there  are  extraneous  facts,  or 
correspondence  shows  only  a  part  of  the  transaction.^* 

§  50.  Dates  —  as,  for  example,  which  of  two  instru- 
ments concerning  the  same  subject,  but  not  referring 
to  each  other,  and  one  being  undated,  was  first  exe- 
cuted —  are  held,  in  I^ew  York,  to  be  a  question  of 
fact.^^  Dates  fixed  by  court  records  may  be  stated 
to  the  jury  as  fact.^*' 

§  51.  When  a  signature  is  disputed,  as  in  an  action 
on  a  bond,^^  or  in  a  prosecution  for  forgery,  it  becomes 
a  question  of  fact  for  the  jury.'^ 

^^  HeJmholz    v.   Everinghara,        ^^  Coons  v.  Chambers,  1  Abb. 

24  Wis.  269.  '  Appeals,  439. 

12  Porter  v.  Havens,  37  Barb.  ^'°  Andrews  v.  Graves,  1  Dil- 
349.  Ion,  C.  C.  111. 

13  Kogers  v.  Carey,  47  Mo.  i'  Mapel  v.  Naylor,  32  N.  Y. 
235.  669. 

1^  McKean  v.  Wagenblast,  2  ^^  Mosher  v.  State,  14  Ind. 
Grant's  Cas.  (Pa.)  465.  262. 


58  QUESTIONS   OF   LAW   AND   TACT.  [Past  I 

§  52.  In  Pennsylvania,  it  is  held  to  be  a  question 
of  law  whether  an  instrument  is  sealed  or  not,  and  a 
question  of  fact  whether,  if  sealed,  it  is  the  seal  of  the 
corporate  defendant,  in  an  action  of  covenant  against 
a  corporation.'^  In  Illinois,  it  is  held  that  it  is  for  the 
court  to  decide  whether  the  instrument  has  a  seal,  but 
for  the  jury  to  say  whether  it  has  been  altered  by 
afiixing  a  seal.^°  In  Alabama,  held  that  the  court 
decides,  except  where  there  is  such  an  ambiguity  as 
to  call  for  exj^lanatory  parol  proof.~^ 

§  53.  The  distinction  of  instruments  is  held,  in 
Maine,  to  be  a  question  for  the  court;  and  also 
whether  the  distinction  was  the  result  of  a  dishonest 
purpose."  But  I  doubt  whether  this  would  be  gen- 
erally followed  as  to  the  second  branch.  In  Texas, 
it  is  held  that  where  the  records  of  a  probate  court 
have  been  destroyed  by  fire,  the  question  whether  or 
not  there  had  been  a  valid  order  of  sale  by  the  probate 
court,  of  land  in  controversy,  is  a  question  of  fact 
for  the  jury;  and  that  if  the  jury  believed  that  there 
was  in  fact  an  order  of  sale,  its  validity  would  be  pre- 
smned  until  the  contrary  was  shown ;  ^'  which  seems 
like  a  swinging  to  the  other  extreme,  as  it  is  settled 
that  the  existence  of  a  record  is  for  the  court  '*  on  the 
issue  of  nul  tiel  record,  and  that  the  validity  of  an 
order  appointing  an  administrator  is  for  the  court  to 

^^  Grossman  v.  Turnpike  Co.,  ^  Tobin    v.    Shaw,    45    Me., 

3  Grant's  Gas.  225.  quoting  1  Stark  Ev.  354. 

20  Schwartz  v  Herrenkind,  26  ^^  Sapp  v.  Neusom,  27  Tex. 
111.  213.  541. 

21  Moore  v.  Leseur,  18  Ala  ^  Ridley  v.  Buchanan,  2 
609.  Swan  (Tenn.)  556. 


Chap.  III.]  OF   WRITTEN   INSTRUMENTS.  59 

decide,  not  for  the  jury.^  In  ^ew  York,  it  is  held 
that  the  destruction  of  a  note  not  negotiable  is  a 
question  of  fact.^^ 

§  54.  Whether  a  sale  was'  by  the  acre  or  by  the 
gross  is  held,  in  Texas,  as  a  question  of  law,  depend- 
ing on  the  construction  of  the  deed  or  contract."^ 

§  55.  Wliere  a  written  receipt  was  given  to  a 
grantor  by  a  grantee  on  receiving  a  deed,  the  receipt 
acknowledging  the  passing  of  the  deed,  and  promising 
to  return  it  to  the  grantor  on  demand,  or  pay  him  in 
money  the  consideration  expressed  in  the  deed,  the 
effect  of  the  receipt  was  held  to  be  a  question  of  law; 
and  no  demand  for  the  return  of  the  deed  having  been 
made,  it  was  accordingly  held  that  the  title  vested  in 
the  grantee.""'^ 

§  56.  An  inference  from  instruments,  introduced 
as  evidence  of  facts,  is  within  the  province  of  the 
jury.  In  a  case  in  Missouri,  the  court  say,  "  The  jury 
were  the  proper  judges  of  the  inferences  of  fact  to  be 
drawn  from  the  papers.  The  legal  effect  of  papers  is 
to  be  determined  by  the  court;  but  when  documents 
are  offered  in  evidence  as  the  foundation  of  an  infer- 
ence of  fact,  whether  such  inference  can  be  drawn 
from  them  is  a  question  for  the  jury.  The  most 
authentic  documents,  when  offered  for  such  a  purpose, 
become  no  more  than  letters,  or  a  written  correspond- 
ence, which,  when  offered  in  evidence  to  prove  a  fact, 
are  always  to  be  interpreted  by  the  jury.    When  doc- 

25  Sims  V.  Boynton,  32  Ala.  27  xj.  S.  Dig. 

361.  28  Howe  V.  Dewing-,    1   Gray 

2^  Des.    Arts   v.  Leggett,    5  (Mass.),  479. 
Duer,  161. 


60  QUESTIONS    OF   LAW  AND    FACT.  [Part  I. 

uments  are  offered  for  such  a  pui'pose,  they,  hke  a 
written  correspondence,  may  be  explamed  by  extrinsic 
evidence.  The  petition  of  Gamache,  whether  on  be- 
half of  himself  or  the  inhabitants  of  the  village,  being 
made  the  foundation  of  an  official  act,  it,  together 
with  the  act,  was  evidence  for  the  jury,  to  have  such 
weight  as,  under  all  the  cu'ciunstances,  they  might 
deem  it  entitled  to."  ^^ 

§  57.  Wliether  an  absolute  conveyance  was  in- 
tended for  a  mortgage  has  been  held  a  question  of 
fact  for  the  jury.^*^     But  contra,  in  IS^orth  Carolina. 

§  58.  And  in  Pennsylvania  it  has  been  held  that  a 
jury  may  determine  what  property  is  included  in  a 
real  estate  mortgage.  Thus,  where  a  railroad  com- 
pany held  town  lots  next  then"  track  for  the  purpose 
of  a  basin  to  form  a  connection  with  river  navigation, 
and  mortgaged  their  road  with  all  its  corporate  priv- 
ileges and  appm'tenances  without  naming  the  lots 
specifically,  and  where  the  mortgage  was  foreclosed, 
and  nevertheless  afterwards  the  lots  were  sold  under 
execution,  in  an  action  of  ejectment  by  the  execution 
prnxhasers  against  the  mortgage  pm'chasers,  the  ques- 
tion arose  whether  the  lots  were  included  in  the 
"  appurtenances  "  of  the  road,  as  essential  to  its  fran- 
chises ;  and  this  question  was  submitted  to  the  jury. 
Held  not  to  be  error .^^ 

§  59.  Where  there  is  ambiguity  in  the  terms  of  a 
will,  it  has  been  held,  in  Maryland,  that  it  is  for  the 

29  Primm  v.  Haren,  27  Mo.  205.  Contra,  N.  C.  R.  12  Ired. 
211.  443. 

30  Home  V.  Puckett,  22  Tex.         ^i  Shamokin   R.  R.   v.    Liver- 

more,  47  Pa.  St.  465. 


Chap.  III.]  OF    WRITTEI^^   IN'STRUMENTS.  61 

jury.^~  This  was  a  case  in  which  the  testator  devised 
"  a  lot  of  ground  lying  on  the  east  side  of  Leadenhall 
Street,  in  Ridgeley's  addition  to  Baltimore  town." 
The  court  say,  "  For  the  purposes  of  this  case,  it  is 
sufficient  to  refer  to  the  decision  of  the  Court  of  Ap- 
peals, in  Walston's  Lessee  v.  Wliite,  5  Md.  R.  297, 
where  the  rule  is  thus  succinctly  stated:  ^  Where  the 
language  of  a  testator  is  plain  and  unambiguous,  such 
language  must  govern;  and  therefore  extrinsic  evi- 
dence is  inadmissible  to  show  that  he  meant  some- 
thing different  from  what  his  language  imports ;  but 
any  evidence  is  admissible  which,  in  its  nature  and 
effect,  simply  explains  what  the  testator  has  written; 
in  other  words,  the  question,  in  expounding  a  will,  is 
not  what  the  testator  meant  as  distinguished  from 
what  his  words  express,  but  simply  what  is  the  mean- 
ing of  his  words.  And  extrinsic  evidence  in  aid  of 
the  exposition  of  his  will  must  be  admissible,  or  inad- 
missible, with  reference  to  its  bearing  upon  the  issue 
which  this  question  raises.'  (Wigram's  Rules  of 
Law.)  " 

§  60.  To  whom  credit  was  given  on  the  following 
order,' — 

"  January  7,  1852. 

"Messhs.  Tubto]^  &  Lescoivib:  Please  let  A. 
Boughton  have  the  fulling  mill  crank,  and  other  work 
for  Thomas  Murray.  Walter  Burke,"  — 

was  held  to  be  a  question  of  fact  for  the  jury,  to  be 
determined  by  the  aid  of  extrinsic  evidence."^^ 

22    Warner  v.   Miltenberger,  ^  Turton   et  al.  v.   Burke,  4 

21  Md.  212.  Wis.  120. 


62  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

§  61.  The  character  of  letters  of  administration  is 
for  the  court.''* 

§  62.  In  Massachusetts,  a  reservation  in  a  lease 
was  left  for  the  construction  of  the  jury,  or  at  least 
their  application,  under  the  following  circumstances. 
Under  a  lease  for  years,  of  a  building,  machinery,  and 
water  power,  the  lessor  reserved  one  room,  with  the 
privilege  of  running  a  saw  and  lathe  therein.  The 
lessee  brought  an  action  against  the  lessor  for  so 
using  the  room  reserved  as  to  hinder  the  lessee  in 
using  the  remainder.  On  the  trial,  it  was  held  that 
the  reservation  was  to  be  construed  so  as  to  enable 
the  lessee  to  carry  on  the  business  of  his  factory;  that 
evidence  of  the  manner  in  which  the  reserved  water 
power  had  been  previously  used  was  admissible  to 
show  a  reasonable  limitation  of  the  right  reserved; 
that  it  was  for  the  jury  to  determine  whether  the  saw 
used  by  the  lessor  required  more  power  than  was  in- 
cluded in  the  reservation ;  that  the  damages  were  to 
be  assessed  according  to  the  value  of  the  lease,  and 
not  estimated  by  the  amount  of  rent,  or  of  the  lessee's 
profits ;  and  that,  on  the  question  of  damages,  the  con- 
dition and  capacity  of  the  works  might  be  shown. 
And  these  rulings  were  sustained.^^ 

§  63.  Evidence  of  the  loss  of  an  instrument  is 
addressed  to  the  court  for  the  determination  of  the 
admission  of  secondary  evidence.  And  then  the  ex- 
istence of  the  instrument  as  a  ground  of  action  is  a 
matter  for  the  consideration  of  the  jury  afterwards .'^^ 

34  Fell's  Point,  &c.,  v.  Wee-  36  nm  y.  Barney,  18  N.  H. 
don,  18  Md.  328.  608. 

35  Dexter  v.  Manley,  1  Cush. 
15. 


Chap.  IV.]     INTEKPRETATION  OP  LAWS,  ETC.  63 


CHAPTER  lY. 

Interpretation  of  Laws,  &c. 

§  64.  The  constitutionality  of  any  legislative  act  is 
exclusively  for  the  court;  neither  the  expediency  or 
propriety  thereof,  nor  the  motives  which  gave  rise  to 
it,  nor  its  conformity  with  the  constitution,  being 
matters  of  fact  for  a  jury.  And  where  the  city  of 
Covington  was  extended,  under  a  legislative  act,  and 
none  of  the  material  facts  of  the  extension  was  con- 
troverted, the  question  whether,  on  those  facts,  the 
act  of  incorporation  and  the  assessment  of  tax  under 
it,  were  valid  and  constitutional,  was  held  to  be  a  con- 
clusion of  law,  which  might  be  at  once  announced  by 
the  court  to  the  jury.  But  in  connection  with  this, 
the  actual  condition  of  the  town  with  regard  to  ter- 
ritory, population,  and  locality,  was  held  to  be  the 
facts  which,  if  controverted,  were  to  be  found  by  the 
jmy.^  And  so,  in  the  matter  of  construction,  whether 
a  statutory  clause  is  directory  or  imperative,  is  not  for 
the  jury.-  And  in  a  case  where  the  court  submitted 
to  the  jury  whether  there  was  such  a  sale  as  was 
required  by  the  act  of  1817,  it  was  held,  on  appeal, 
that  therein  the  court  erred  in  thus  constituting  the 
jury  judges   of  the  law,  it  being  the  duty  of  the 

1  Maltus  V.  Shields,  2  Met.  ^  Board  v.  Heenan,  6  Minn. 
(Ky.)  557.  336. 


64  QUESTIONS   OF   LAW  AND   FACT.  [Part  L 

court  itself  to  expound  and  interpret  the  provisions 
thereof.^ 

§  65.  The  question  of  legal  jurisdiction  belongs  to 
the  court,  except  where  facts  are  to  be  passed  upon 
by  the  jury  before  that  question  arises ;  and  so,  if  the 
jurisdiction  depends  on  the  existence  of  facts,  the 
jury  may,  under  the  direction  of  the  court  as  to 
matter  of  law,  find  by  general  verdict  whether  there 
is  or  is  not  jurisdiction.* 

§  66.  Wliat  is  lawful  money  is  exclusively  for  the 
court.  And  so  it  was  held  error  to  instruct  the  jury 
to  find  for  the  defendant  "  if  they  were  satisfied  he 
was  prepared  and  ofiered  to  pay  the  sum  demanded 
in  lawful  money  of  the  United  States  other  than  gold 
and  silver  coin,"  —  this  leaving  to  the  jury  to  decide 
what  is  lawful  money .^ 

§  67.  Foreign  laws  are  not  judicially  noticed.  If 
they  are  unwritten,  they  may  be  proved  by  parol,  and 
there  is  no  presumption  that  they  are  in  writing.  If 
they  are  written,  they  must  be  produced  and  properly 
authenticated.  Wlien  adduced  in  evidence,  the  judge 
is  to  construe  such  laws;  and  the  construction  is  to 
be  controlled  by  the  construction  given  within  the 
jurisdiction  where  they  are  in  force  ;  and,  for  this 
purpose,  the  opinions  of  text-writers,  the  decisions  of 
the  courts,  and  the  testimony  of  experts  may  be  re- 
sorted to.^  Yet  it  has  been  held  that  the  existence 
of  slavery  by  law  in  Canada  was  a  fact  for  the  jury  -, ' 

3  Clarke  v.  Marriott,  9  Gill,  ^  Chesapeake  Bank  v.  Swain, 
(Md.)  337.  29  Md.  502. 

*  United  States  v.  Sanders,  ^  Charlotte  v.  Chouteau,  25 
1  Hemp.  C.  C.  R.  486.  Mo.  465. 

,     ">  Same  Case,  33  Mo.  201. 


Chap.  IV.]      INTERPRET ATION    OF   LAWS,   ETC.  65 

which  seems  an  anomaly,  since  the  settled  rule  is, 
that  while  no  court  takes  judicial  notice  of  foreign 
laws,  yet,  w^hen  proved,  they  must  be  proved,  as  facts 
indeed,  but  to  the  court,  for  the  purpose  of  construc- 
tion as  to  the  meaning  thereof,  the  application  to  the 
case  in  hand  and  their  effect  thereon  being  commu- 
nicated to  the  jury  by  instructions.^ 

Whether  the  laws  of  other  states  of  the  Union  are 
to  be  considered  foreign  laws  in  this  regard  has  l^een 
variantly  decided.  But  the  weight  of  authority  is 
probably  in  the  negative,  so  that,  in  general,  the  laws 
of  other  states  may  be  judicially  noticed.^ 

§  68.  The  constitution  and  by-laws  of  an  associa- 
tion or  society  are  to  be  construed  by  the  court;  and 
it  was  held  error  to  instruct  the  jury  to  find  that  pro- 
ceedings against  a  member  of  the  Osceola  Tribe  of 
Red  Men,  nnder  charges,  were  "  in  accordance  with 
the  constitution  and  by-laws"  of  the  order;  the  court 
remarking  that  whether  any,  and  if  any,  what  pro- 
ceedings took  place,  were  proper  inquiries  for  the 
jury ;  but  whether  they  were  in  accordance  with  the 
constitution  and  by-laws  of  the  society,  or  tribe,  was 
a  question  of  law  for  the  court,  and  not  of  fact  for  the 
jury.^^ 

§  69.  And  so  mining  laws,  when  introduced  in  evi- 
dence, are  for  the  construction  of  the  court;  and  the 
question  whether,  by  virtue  of  such  laws,  a  forfeiture 

^  Hooper  v.  Moore,  5  Jones  ira,  Hooper  v.  Moore,  5  Jones 

L.   (N.   C.)    132;     Ferguson   v.  L.  N.  C.  182. 

Clifford,  37  N.  H.  98.  lo  Osceola,  &c.,  v.  Rost,  16 

^    Affirming,     Lockwood     v.  Md.  296. 
Crawford,  13  Conn.  361.      Con- 

5 


66  QUESTIONS   OF   LAW  AKD   FACT.  [Part  I. 

had  accrued  is  a  question  of  law.^'  But  it  seems  that, 
where  there  is  doubt  whether  the  written  mining  laws 
were  in  force  when  the  cause  of  action  arose,  and  first 
parol  evidence  of  the  usage  is  introduced,  and  after- 
wards the  written  mining  laws  concerning  which  such 
doubts  existed,  the  whole  may  go  to  the  jury  to- 
gether.^^ 

§  70.  The  question  of  the  reasonableness  of  a  rail- 
road regulation  as  to  thnd  persons,  has  been  held,  in 
ISTew  Jersey,  to  be  a  matter  of  fact  for  the  jury,  while 
the  validity  of  a  by-law  binding  the  members  of  the 
corporation  alone,  is  for  the  court."  But  the  weight 
of  authority  is  the  other  way.  In  'New  York,  it  is 
held  that  the  reasonableness  of  a  regulation  that  way 
passengers  must  surrender  their  tickets  before  reach- 
ing the  station  next  to  their  destination,  without 
receiving  a  check  or  evidence  of  payment  of  fare  in 
return,  is  for  the  court  alone."  And  the  Supreme 
Court  of  Blinois,  ruling  the  same  way,  says,  "The 
necessity  of  holding  this  to  be  a  question  of  law,  and 
therefore  within  the  province  of  the  court  to  settle,  is 
apparent  from  the  consideration  that  it  is  only  by  so 
holding  that  fixed  and  permanent  regulations  can  be 
established.  If  this  question  is  to  be  left  to  juries, 
one  rule  would  be  applied  by  them  to-day,  and  an- 
other to-morrow.  In  one  trial  a  railway  would  be 
held  liable,  and  in  another  presenting  the  same  ques- 
tion, not  liable.     l!^either  the  companies  nor  passen- 

^^  Fairbanks  v.   Woodhouse,         ^^  Morris,   &c.   R.  R.   Co.   v. 

6  Cal.  433.  Ayres,  5  Dutch.  895. 

12   Colman  v.    Clements,    23         ^^  Vedder  v.  Fellows,  20  N. 

Cal.  248.  Y.  129. 


Chap.  [V  ]       INTERPRETATION"   OF    LAWS,   ETC.  67 

gers,  would  know  their  rights  or  their  obhgations. 
A  fixed  system,  for  the  control  of  the  vast  interests 
connected  with  railways,  would  be  impossible;  while 
such  a  system  is  essential  equally  to  the  roads  and  to 
the  public. ^^ 

§  71.  The  legality  of  an  ordinance  passed  by  a 
municipal  corporation  is  for  the  court.  And  so, 
where  the  city  of  Peoria,  by  its  charter,  had  the  right 
to  regulate,  but  not  to  restrain  or  prohibit,  the  sale 
of  fi-esh  meat;  and,  in  pursuance  thereof  could  build 
market-houses,  and  con&ie  the  trade  in  meat  to  these 
market-houses,  it  was  held  error  to  leave  to  the  jury 
to  determine  whether  an  ordinance  did  restrain  or 
prohibit  the  selling  or  trading  in  that  line  of  busmess ; 
the  construction  of  the  ordinance,  and  its  effect,  being 
for  the  court. ^^ 

§  72.  Matters  of  custom  and  usage  are  for  the  jury ; 
as,  for  example,  the  custom  of  merchants  and  others, 
in  a  usual  course  of  dealing;  ^"^  such  as  a  usual  place 
of  receiving  goods  at  Milwaukee,  forwarded  by  steam- 
boat ;  ^**  usage  of  bankers  as  to  deposits,^^  and  as  to 
overdrawing  the  same ;  ~^  the  course  of  usual  employ- 
ment of  a  vessel ;  ^'  custom  of  ship  brokers  as  to  re- 
newing charters ;  ^  commercial  usage  as  to  commis- 
sions ;  ~^    customary  management   of  locomotives  ;  ~* 

15  111.  Cen.  R.  R.  v.  Whitte-  20  Gumming  v.  Shand,  5  Hurl, 
more,  43  III.  423.  &  Nor.  95. 

16  Peoria  v.  Calhoun,  29  III.  21  Steamboat  v.  Hopkins,  30 
320.  Miss.  703. 

17  Allen  v.Lyles,  30  Miss.  516.         22  ^^Uen  v.  Sundius,   1  Hurl. 
1^  Steamboat  v.   Chapman,   5    &  Colt.  123. 

Wis.  465.  23  Kuhtman  v.  Brown,  4  Rich. 

19  Chesapeake  Bank  v.  Swain,    (S.  C.)  479. 
29  Md.  496.  24  Quimby  v.  R.  R.,  23  Vt.  394. 


68  QUESTIONS    or    LAW   A^D   TACT.  [Part  I. 

agreement  as  to  notice  in  cases  of  hiring;  "^^  good 
husbandry;-'''  and  as  to  placing  curbstones;  whether 
a  certain  place  was  a  bank ;  "^  and  the  ordinary  use 
of  a  horse;  ~^  whether  certain  outlands  had  been  used 
as  a  common  by  the  inhabitants  of  a  village  ;~^  and 
whether  a  certain  person  was  a  public  carrier."" 

Whether  a  custom  is  reasonable  or  not  is  for  the 
court,  but  the  fact  of  user  for  the  jury.^^ 

Where  a  written  instrument  is  to  be  explained  by 
usage,  parol  evidence  introduced  for  the  purpose  is 
for  the  jury,  and  the  province  of  the  court  is  to  in- 
struct them  conditionally,  or  hypothetic  ally,  what  they 
should  regard  as  the  construction,  as  they  find  the 
evidence  to  support  the  purpose  for  which  it  is  of- 
fered, or  otherwise.  Wliere  an  instruction  was  that 
a  written  memorandum  was  sufficient  if  the  jury 
should  "  find  that  it,  either  expressly  or  according  to 
the  sense  and  signification  of  its  language  and  figures, 
under  the  established  usage  and  custom  of  merchants 
in  the  city  of  Baltimore,  at  the  time,  &c.,  represented 
truly  and  fully  the  terms  of,  and  parties  to,  the  con- 
tract of  sale,"  it  was  held  erroneous,  as  it  authorized 
the  jury  to  construe  the  memorandum  without  either 
an  absolute  or  conditional  construction  thereof  by  the 
court.''^ 

25  Parker  v.  Ebbetson,  4  C.  B.  29  garry  v.  Blumenthal,  32 
(N.  S.)  346.                                     Mo.  29. 

26  Wing  V.  Gray,  36  Vt.  261.  so  Pennewcll  v.  Cullen,  5  Harr. 
2'  Way  V.   Butterworth,   106     (Del.)  241. 

Mass.  T6.  21  Bourke  v.  James,  4  Mich. 

28  Allman  v.  Gaun,  29  Ala.     338. 
240.  32  Williams  v.  Woods,  16  Md. 

252. 


Chap.  V.]        IXTEKPEETATIOI5'   OF   LANGUAGE.  69 

§  73.  A  common  design  is  held  to  be  a  matter  of 
law  for  the  court;  but  any  act  done  in  pursuance  of 
it  is  for  the  jury;  and  whether  an  assembly  is  unlaw- 
ful, is  for  the  court.^^ 

§  74.  Where  a  tender,  under  authority  of  law,  is 
paid  into  court,  the  court  will  take  judicial  notice  of 
the  fact  of  payment;^*  but  it  is  for  the  jury  to  say 
whether  an  actual  tender  between  parties  has  been 
dispensed  with,  where  one  party  has  rescinded  a  con- 
tract for  the  other's  fraud,  and  offers  to  return  what 
he  has  received,  but  is  prevented  by  the  declaration 
of  the  other  that  he  will  not  accept  it.^ 


CHAPTEE  Y. 

Inteepketation  of  Language. 

§  75.  The  general  rule  as  to  the  meaning  of  words 
is,  that,  if  they  are  spoken,  they  are  to  be  interpreted 
by  the  jury;  if  written,  by  the  court.  In  spoken 
words,  when  the  jury  have  fixed  the  meaning,  the 
court  determines  the  legal  effect  and  consequence;  as, 
where  it  was  referred  to  the  jury  to  decide  whether 
spoken  words  implied  a  guaranty  or  a  direct  under- 
taking, and  the  court  determined  the  defendant's  lia- 

^3  Com.   V.   Brown,   14  Gray,  ^*  Newton  v.  Allis,   16  Wis, 

419 ;    Frank   v.  State,  21   Ala.  198. 

88  ;     Slater  v.  Wood,  9  Bosw.  ^  Wheelden    v.   Lowell,     50 

20  ;  Jones  v.  Hurlbnrt,  39  Barb.  Me.  499. 
403  ;  State  v.  Dula,  Phill.  N.  C. 
214. 


70  QUESTI0:N^S   of   law   AKD   fact.  [PartI. 

bilily  thereon,  held  no  error.^  And  in  general,  words 
used  in  conversation  are  to  be  construed,  as  to  their 
meaning;  and  the  intention  of  the  parties  in  using  them, 
by  the  jury,  and  the  court  cannot  rule,  as  matter  of 
law,  that   spoken  words  amount  to   an  estoppel   in 

In  an  indictment,  the  court  is  to  decide  whether  a 
name  is  David  or  Daniel,  according  to  the  general 
rule.''  But  in  a  case  where  the  court  could  not  decide 
what  the  figures  of  a  date  on  a  promissory  note  were, 
the  question  of  variance  was  sent  to  the  jury,  under 
instructions;  and  it  was  held  no  error.*  But  this 
seems  to  be  anomalous,  and  a  dodging  of  responsi- 
bility. 

But,  in  IS^ew  Hampshire,  it  is  held  that  the  mean- 
ing, force,  and  construction  of  language  belongs  to 
the  court;  but  whether  words  were  spoken  in  the 
speaker's  own  behalf,  or  as  an  agent  of  another,  is  to 
be  decided  by  the  jury.^ 

In  Maine,  it  is  held  that,  whether  certain  words 
spoken  gave  authority  to  sell  property,  is  for  the 
jury,*^  and  this  is  in  accordance  with  the  general  rule. 

Also,  in  the  same  state,  where  a  defendant  sold  the 
plaintiif,  by  written  contract,  all  "his  apparatus  for 
making  soap,  all  ashes  and  soap  on  hand,"  &c.,  "  also 
all  his  trade  and  customers,"  it  was  held  within  the 
general  rule,  and  that  the  latter  clause  contained  no 

1  Warnick  v.  Groshalz,  3  *  Partridge  v.  Patterson,  6 
Grant's    Cases  (Pa.)  235.  Clarke  (Iowa)  515. 

2  Brubaker  v.  Okeson,  36  Pa.  ^  Whitney  v.  Swett,  2  Foster, 
St.  519.  14. 

^  Commonwealth  v.  Riggs,  14  ^  Copelaud  v.  Ilall,  29  Me, 
Gray,  311.  94. 


Chap.  V.]       INTERPRETATION^   OE   LANGUAGE.  71 

latent  ambiguity  which  would  require  the  contract  to 
go  to  the  jury  with  parol  evidence  showing  the  inten- 
tion of  the  parties. '' 

§  76.  Particular  words  and  phrases  are  •  governed 
by  the  general  rule  above  laid  down;  as,  for  example, 
the  word  "  immediately,"  in  a  written  contract.*^  But 
where  a  purchase  of  coal  was  made  under  written 
instructions,  it  was  left  to  the  jury  to  determine 
whether,  according  to  the  instructions,  the  coal  was 
purchased  by  the  agent  '^  afloat,"  in  the  meaning  of 
that  term  among  merchants;  and  this  was  held  no 
error .^  And  what  constitutes  "  unfaithfulness "  on 
the  part  of  commissioners  appointed  under  a  com- 
plaint for  flowage,  is  held  to  be  for  the  jury.^°  And 
where  a  contract  called  for  ^^  soft  English  lead,"  it 
was  held  not  error  to  leave  the  question  to  the  jury 
whether  this  phrase  meant  what  was  known  in  com- 
merce as  soft  lead  made  in  England  fi-om  whatever 
ore ; "  and,  under  a  written  agreement,  the  question 
what  the  words  "  carding  machine  and  fulling  mill," 
and  "  fixtures  belonging  to  the  fulling  mill  and  card- 
ing machine,"  meant,  was  held  proper  for  the  jury.^^ 
And  so  the  word  "  fairly,"  relating  to  the  manner  of 
working  a  coal  mine  under  demise,  was  left  to  the 
jury,  after  the  court  had  expressed  an  opinion  as  to 
its  meaning.  ^^ 

7  Warren  y.  Jones,  51  Me.  148.         ^i  Fallen  v.  Le  Roy,  30  N.  Y. 

8  Streeter  v.  Streeter,  43  111.     663. 

165.  12  Martin  v.  Lespe,  28  N.  Y., 

9  Law  V.  Cross,  1  Black.  U.  S.    181. 

538.  13  Griffiths  v.  Rigby,  27  Eng. 

1"  Berry  v.   Billings,  47   Me.     Law  &  Eq.  519. 
329. 


72  QUESTIOI^S   OF   LAW   AND   FACT.  [Pabt  I. 

But  whether  particular  things  are  "  fixtures,"  or 
jiot,  is  held  to  be  a  mixed  question  of  law  and  fact  in 
Missouri;  and  held  that  juries  should  be  guided  to  an 
intelligent  determination  of  the  question  by  an  expla- 
nation of  the  legal  meaning  of  the  term.^^ 

Evidence  of  connnon  usage  may  be  brought  to  ex- 
plain a  written  instrument;  and  then  it  is  for  the 
court  to  interpret  the  language  of  the  instrument 
thereby;  as,  for  instance,  to  explain  the  meaning  of 
the  word  "  grain  "  in  a  lease. '^ 

In  a  railroad  subscription,  providing  that  the  money 
should  be  used  in  the  construction  of  a  road  to  Derby 
Line,  it  was  held  jpi^ima  facie  to  mean  the  north  line 
of  Derby.  But  on  trial,  the  defendant  showed  that 
the  words  "  Derby  Line,"  in  common  usage,  meant  a 
village  of  that  name  in  Derby,  and  it  was  thereupon 
held  that  it  was  a  question  of  fact  for  the  jury 
whether  the  expression  in  the  contract  of  subscription 
meant  the  north  line  of  Derby  or  the  village  named 
Derby  Line.^*^ 

And  where  a  contract  was  that  stones  should  be 
delivered  "  at  and  near  A,"  it  was  held  a  question  for 
the  jury  whether  a  point  a  mile  and  a  half  distant 
was  "  near "  A,  in  the  meaning  of  the  contract ; 
which  could  not  be  decided  by  the  court  as  matter 
of  law.'^  Whether  wood  is  hard  or  soft  wood,  is  for 
the  jury.^^ 


^^  Lod^e  of  Masons  v.  Knox,  ^'^  Shaw  v.  Davis,    Y    Mich. 

in  Mo.  315.  322. 

15  Smith  V.  Clayton,  5  Dutch  ^^  Darling  v.  Dodge,  36  Me 
(N.  J.)  363.  373. 

16  R.  R.  V,  Baxter,  32  Vt.  805. 


Chap.  V.]        INTERPEETATION^    OF   LAl^GUAGE.  73 

§  77.  Legal  terms  may  sometimes  be  explained  or 
defined  by  the  jury.  Thus,  while  what  is  a  "  pnblic 
use"  is  for  the  court  to  determine,^^  yet  whether  a 
particular  landing  is  a  "public  landing"  is  for  the 
jury.-^  And  what  is  a  "  public  place,"  is  a  question 
of  law,  if  the  facts  are  apparent  which  constitute  a 
public  place;  but  if  disputed,  it  seems  the  needful 
parol  evidence  draws  the  whole  to  the  jury.^^ 

Wliether  a  society  is  "  met  together  "  or  dispersed, 
after  the  benediction,  is  held,  in  Indiana,  to  be  a  ques- 
tion for  the  jury,  in  a  prosecution  for  disturbing  a 
religious  meeting." 

The  question  of  "  dangerous  "  or  "  deadly  "  weapons 
has  been  variantly  decided,  but  probably  the  general 
doctrine  is  that  it  is  for  the  jury.^^ 

Where  the  report  of  commissioners  in  partition  set 
off  to  one  of  the  parties  "the  water  privilege  now 
occupied  by  the  saw-mill  called  Franklin,"  it  was  held 
that  the  extent  of  that  privilege  was  for  the  jury.~^ 
And  whether  flashboards  are,  a  part  of  a  dam  is  for 
the  jury.-^ 

Under  the  act  of  Congress  of  June  13,  1812, 
which  confirmed  the  titles  to  "  out-lots  "  in  the  town 
of  St.  Louis,  Mo.,  on  certain  conditions,  the  perform- 
ance of  which  conditions  and  proof  of  boundaries 
were  required  by  a  later  act  to  be  recorded,  it  was 

19  R.  R.  V.  Greeley,  It  N.  H.         23  poj.  j^-y^  XJ.  S.  v.  Small,  2 

47.  Curtis  241  ;  for  court,  State  v. 

'^  Burrows  v.  Gallup,  32  Conu.  West,  2  Jones  L.  (N.  C.)  505. 
493.  24  Munroe   y.   Gates,  42  Me. 

21  Russell  V.  Dyer,  40  N.  H.  180. 

173.  25  Noyes  v.  Silliman,  24  Conn. 

22  State  V.  Snyder,  14  Ind.  429.     15. 


74  QUESTIONS   OF   LAW  AND   FACT.  [r^RT.  I. 

held  a  question  for  the  jury  whether  a  certain  lot 
and  conditions  were  within  the  purview  of  the  act 
of  1812.2« 

"What  is  an  "  appurtenance  "  of  a  steamboat  is  held 
a  question  for  the  jury.-^ 

Where  a  fii*m,  as  "  Charles  G.  Ramsey  &  Co.,"  give 
a  renewed  note,  signed  "  Chas.  G.  Ramsey  and  Co.," 
the  question  of  identity,  if  raised,  is  for  the  jury."^ 

Where  the  words  "  in  liquidation "  were  written 
under  the  signature  of  a  note  signed  by  a  firm,  it  is 
held  that  if  the  words  are  proved  to  have  been 
written  at  the  time  the  note  was  executed,  and  if, 
according  to  mercantile  usage,  they  import  a  firm 
dissolved,  the  jury  may  infer  a  notice  of  dissolution 
to  the  payee;  and  the  question  w^hen,  and  by  whom, 
the  words  were  written,  and  what  is  the  proper  infer- 
ence from  them,  is  exclusively  for  the  jury  to  decide. ^^ 

Wliether  a  business  house  in  another  state  is  "  actu- 
ally engaged  in  the  business  of  a  bank,"  is  for  the 
jury,  under  the  statute  of  Michigan.^" 

The  materiality  of  "  false  and  fraudulent "  represen- 
tations is  a  question  of  fact.^' 

The  question  of  the  "  readiness  and  willingness  "  of 
a  party  to  pay  is  also  exclusively  for  the  jury.' ~ 

What  is  "  safe  and  convenient "  in  a  highway,  and 

2^  Savignac    v.   Garrison,    18         ^^  Jennings  v.  The  People,  8 

How.  137.  Mich.  81. 

2^  j!^  mis  V.  Steamboat,  9  Mo.         ^^  Bradley  v.  Poole,  98  Mass. 

629.  169. 

28  Tilford  V.  Ramsey,  37  Mo.  ^  Cummings  v.  Taylor,  42  111. 
567.  173. 

29  Burr  V.  Williams,  20   Ark. 
172. 


Ohap.  v.]         INTEKPBETATION^   OF   LANGUAGE.  75 

the  obligation  connected  with  it,  are  questions .  of 
fact.^^ 

In  ^N^ew  York,  where  it  is  held  that  juries  are  not 
judges  of  the  law,  it  was  held  error  to  charge  them 
that  they  were  to  judge  of  the  meaning  of  the  term 
"prostitution."  ^^  But  in  Missouri  it  was  held  proper 
to  leave  to  the  jury  to  decide  whether  a  certain  game 
was  "  a  game  of  chance."  ^^  And  in  Alabama  it  was 
held,  that  whether  a  "  challenge  "  to  fight  a  duel  had 
been  given,  was  a  question  for  the  jury;  and  that  no 
particular  form  of  words  was  necessary  to  constitute 
such  challenge ;  and  that  the  jury  should  decide  upon 
the  intention  of  the  party,  and  Avhether  liis  words 
were  the  mere  effusion  of  passion  or  folly,  the  idle 
boast  of  a  braggart,  or  an  earnest  expression  of  design 
to  fight  a  duel.^^ 

"  Cruel  treatment  "  and  "  ill-usage  "  are  held  ques- 
tions for  the  jury,  under  the  instructions  of  the 
court.^^ 

Whether,  on  grounds  of  public  policy,  a  contract  is 
void,  is  a  question  of  law,  where  there  is  no  dispute 
on  the  facts  from  which  the  question  arises.^ 

And  whether  communications  by  a  client  to  an  at- 
torney are  to  be  regarded  as  privileged,  is  also  for 
the  court.^^ 

§  78.  In  matters  of  hbel  and  slander,  the  general 

33  Tupp  V.  Lyman,  37  Maine,         36  j^ey  v.  State  12  Ala.  279. 
252  ;   Bryant  v.   Biddeford,   39         37  Ewing  v.  Ingram,  4  Gab. 
Maine,  193.  N.  J.  521  ;    Byrne  v.  Byrne,  3 

34  Carpenter  y.  People,  8  Barb.  Tex.  340. 

603.  38  Tjjujg    .^    rp^jjjg^    jg   j,^^_ 

35  Glascock  V.  State,   10  Mo.     Law  &  Eq.  151. 

610.  39  Hull  V.  Lyon,  27  Mo.  576. 


76  QUESTION'S   OP   LAW  AKD   PACT.  [Part  I. 

rule  is  that  it  is  for  the  court  to  define  what  words 
are  slanderous;  *°  and  for  the  jury  to  determine  upon 
the  speaking  and  attendant  circumstances  ;  ^^  and 
whether  the  words  were  spoken  of,  and  concerning 
the  plaintiff.^'  The  signification  of  particular  words 
averred  in  an  innuendo  is  a  question  of  fact.^^'  And 
words,  also,  of  doubtful  meaning,  which  may  be  under- 
stood in  different  senses,  one  of  which  ma}'^  be  slan- 
derous and  the  other  not,  are  left  to  the  jury  to  say  in 
what  sense  they  were  meant.**  And  so,  where  an  angry 
letter  charged  the  plaintiff  with  "  trying  to  defraud 
the  defendant  for  a  long  time,  and  with  having  done 
as  much  as  lay  in  his  power,"  the  whole  was  proper 
for  the  jury  to  determine  whether  the  language  was 
intended  to  bear  a  sense  mjurious  to  the  plaintiff;  and 
it  was  held  that  the  court  had  no  right  to  assume,  on 
the  trial,  as  it  had  done,  that  the  letter  was  no  libel.*' 
And  so,  where  a  letter  was  marked  "  confidential," 
and  contained  the  words,  "  had  to  hold  over  for  a  few 
days  for  the  accommodation  of  the  makers,"  it  was 
held  that  the  words  did  not  necessarily  imply  that  the 
makers  were  unable  to  pay  at  maturity;  and  that  it 
was  for  the  jury  to  say  whether  the  words  were  used 
in  an  injurious  or  innocent  meaning.*^  And  so,  in  an 
action  for  libel,  in  calling  the  plaintiff  a  "  truckmas- 
ter,"  there  being  no  innuendo  to  explain  the  mean- 

^^  Eastham     v.    Curd,    15   B.  ^*  Lucas  v.  Nichols,    7  Jones 

Mod.  (Ky.)  105.  L.  (N.  C.)  35. 

^1  Justice   V.  Kirlin,    lY    Iiid.  ^^  Simmons  v.  Morse,  6  Jones 

590.  L.  (N.C.)7. 

42  Green    v.  Telfair,  20  Barb.  ^6  Lewis  v.  Chapman,   16  N. 
(N.  Y.)  13.  Y.  371. 

43  Birch  ?;. Benton,  26  Mo.  160. 


Chap.  V.]  INTERPEETATIOJ^"    OF   LANGUAGE.  77 

ing,  it  was  held  that,  although  the  dictionary  did  not 
contain  the  word,  yet,  as  it  was  compounded  of  t\\  o 
well-known  words,  the  plaintiff  had  no  need  to  prove 
its  signification,  nor  the  judge  to  explain  it  to  the 
jury;  but  that  it  was  properly  left  to  the  jury  to 
decide  whether,  under  the  circumstances,  it  was  used 
in  a  defamatory  sense. ^^ 

§  79.  Matters  of  privilege  belong  to  the  jury. 
Where  the  plaintiff,  during  the  Crimean  war,  had 
been  a  general  in  command  of  a  corps  of  irregular 
troops,  and,  complaint  having  been  made  of  the  in- 
subordination of  those  troops,  he  had  resigned  on  the 
appointment  of  a  superior  officer  over  him,  who  di- 
rected an  officer  to  inspect  the  corjDs,  and  referred 
him  to  the  defendant,  a  civil  commissioner,  who  gave 
a  defamatory  statement  concerning  the  behavior  of 
the  plaintiff  while  commanding,  or  rather  when  giving 
up  the  command,  an  action  of  slander  was  brought. 
And  it  was  held  that  the  jury  could  properly  inquh'e 
into  the  relevancy  of  the  answer  of  the  defendant,  on 
the  application  of  the  inspector  for  information,  in  the 
course  of  his  official  duty;  and  the  rule  was  thus  laid 
down  by  the  court:  "  Wlien  once  a  confidential  rela- 
tion is  established  between  two  persons,  with  regard 
to  an  inquiry  of  a  private  nature,  whatever  takes  place 
between  them  relevant  to  the  same  subject,  though  at 
a  time  and  place  different  from  those  at  which  the 
confidential  relation  began,  may  be  entitled  to  protec- 
tion as  well  as  what  passed  at  the  original  interview; 
and  it  is  a  question  for  the  jury  whether  any  further 

4'  Homer  v.  Tauuton,  5  Hurl.  &  Nor.  663. 


78  QUESTIONS   OP   LAW   AND   FACT.  [Part  I. 

conversation  on  the  same  subject,  though  apparently- 
casual  and  voluntary,  did  not  take  place  under  the 
influence  of  the  confidential  relation  already  estab- 
lished between  them,  and  therefore  entitled  to  the 
same  protection."  ^^  And  the  principle  is  the  same  as 
to  relevant  or  irrelevant  testimony  as  a  witness.^^ 

§  80.  And,  in  like  manner,  circumstances  of  aggra- 
vation are  for  the  jury,  as  also,  per  consequence,  of 
mitigation.  As,  for  instance,  if  a  plea  of  justification 
is  put  in  maliciously,  it  is  an  aggravation;  if  in  good 
faith,  the  e\ddence  honestly  introduced  under  it  may 
be  taken  in  mitigation,  although  insufficient  to  prove 
the  truth  of  the  plea.^° 


CHAPTER   YI. 

COI^TRACTS. 

§  81.  The  capacity  of  parties  to  contract  is  a  matter 
of  fact.  In  a  Texas  case,  it  was  held  that  a  contract 
cannot  be  avoided  for  drunkenness,  unless  the  drunk- 
enness was  so  excessive  as  to  disable  the  party  from 
consenting;  and  that  whether  such  an  incapacity  ex- 
isted from  this  cause  in  the  making  of  a  contract, 
was  for  the  jury  to  determine.^  And  the  same  doc- 
trine is  announced  in  Indiana,'  and  in  Pennsylvania.^ 

^^  Beatson  v.  Skeene,  5  Hurl.  ^  Reynolds  v.   Dechaums,  24 

&  Nor.  855.  Tex.   174. 

49  White  V.  Carroll,  42  N.  Y.  2  Cummings  v.  Henry,  10  Ind. 

166.  109. 

^  Thomas    v.    Dunaway,    30  ^  Hanna  v.  Phillips,  1  Grant, 

111.  387.  253. 


CnAP.  VI.]  COI^^TKACTS.  79 

§  82.  As  to  the  existence  of  a  contract,  it  is  held, 
in  jSTew  Jersey,  that  it  is  for  the  jnry  to  say,  in  an 
action  to  recover  the  price  of  goods  sold,  whether 
there  was  any  contract  of  sale,  or  not;  and  if  so,  what 
its  terms  were,  and  consequently  whether  there  was 
any  stipulation  excusing  the  vendee  from  obligation 
to  offer  to  return  the  goods;  and  that,  when  thus 
determined,  the  construction  and  legal  eifect  are  for 
the  court.*  And  so  in  Missouri.'^  And  Avhere  a  moth- 
er-in-law performs  menial  service  in  a  family,  it  is 
held  a  question  of  fact,  to  be  determined  from  all  the 
circumstances  of  the  case,  whether  it  was  under  an 
implied  contract  for  wages  or  not.*'  And  where 
parents  have  been  living  with  a  step-son,  it  is  for  the 
jury  to  determine  whether  they  were  to  pay  board,  or 
were  living  on  the  hospitality  of  their  relatives."  But 
where  the  law  implies  a  contract  for  services  rendered, 
there  is  no  question  for  the  jury  thereon,  as  to  its  ex- 
istence.^ In  a  quantum  meimit,  however,  it  is  for  the 
jury  to  affix  the  amount  of  value  to  services  rendered, 
and  it  is  not  needful  that  witnesses  express  an  opinion 
as  to  the  value  thereof  in  money .^ 

The  right  to  interest  for  money  had  and  received, 
is  held  to  be  for  the  court,  the  jury  only  having  a 
right  to  pass  on  the  liability  for  interest,  when  the 
law  allows  interest  to  bo  computed  as  damages. '° 

^  Smalley  ik  Hendrickson,  5  ^  Prickett  v.  Badger,  3T  Eng. 

Dutcli.  373.  Law  &  Eq.  428. 

^Judo^e  V.  Le  Claire,  31  Mo.  ^  Maden  v.  Porterfield,  *?  Jones 

127,  and  Belt  v.  Goode,  ibid. 129.  N.  C.  170. 

^  Smith  V.  Mjers,  19  Mo.  433.  ^^  Robinson  v.  New  Ins.  Co, 

7  Myers    v.   Malcolm,  20  111.  1  Robertson,  N.  Y.  19. 
622.     . 


80  QUESTIONS    OF   LAW   AOT)   FACT.  [Part  I. 

§  83.  It  is  the  general  rule  that  written  contracts 
are  peculiarly  for  the  construction  of  the  court,  sub- 
ject, moreover,  to  some  limitations,  which  I  will  notice 
hereafter.  So,  where  a  lease  for  a  stone  quarry  pre- 
scribed that  the  lessees  should  pay  one  and  a  fourth 
cent  per  cubic  foot  for  the  stone,  and  a  question 
arose,  under  this  lease,  whether  the  lessees  were  lia- 
ble to  pay  for  rubble  stone,  which  is  not  sold  by  the 
cubic  foot,  but  in  mass,  or  by  the  perch,  the  question 
of  liability  was  held  to  be  for  the  court.^^  And  wheth- 
er, under  a  contract,  payment  for  the  services  of  the 
plaintiif  were  to  be  paid  for  annually,  or  only  at  their 
termination.^-  Also,  a  declaration  concerning  a  deed, 
importing  its  trust  character,  when  the  declaration 
was  written.^'^  And  whether  a  note  calls  for  $42.25 
or  $42.75 ;  ^*  and  whether  a  seller  was  entitled  to  keep 
possession  of  property  under  a  bill  of  sale,  until  an 
accompanying  promissory  note  was  due;^^  and  the 
force  and  effect  of  a  release.^" 

And  unless  a  contract  contains  technical  terms  known 
and  understood  only  by  scientific  men,  the  court  will 
construe  it  without  the  aid  of  witnesses  to  explain  it.^^ 
And  words,  as  "  timber,"  in  a  contract,  is  for  the  court. '^ 
But  if  the  words  are  obscure,  it  is  held,  in  IS^orth 
Carolina,  it  is  to  be  pronounced  void ;  and  if  some  of 

11  Emery    v.    Irvings,    6  Gill  ^^  Woodman    v.   Chesley,    89 

(Md.)  199.  Me.  50. 

12' Thomas  v.  Thomas,  15  B.  i'^  Levviston   v.  K.  K.,  7  Ind. 

Men.  (Ky.)  185.  598. 

13  Shepherd  V.  White,  11  Tex.  i"  McAvoy   v.  Long,   13  111. 

356.  150. 

1*  Drew  V.  Towle,  10  Foster  i^  Nash  v.  Drisco,  51  Mo.  41t. 
N.  H.  538. 


Chap.  VI.]  CONTRACTS.  81 

the  terms  are  words  of  art  and  science,  the  jury  must 
find  the  meaning  on  tlie  testimony  of  experts;  and 
afterwards  the  contract  is  to  be  construed  by  the 
court. ^^  I  think,  however,  that  the  general  rule  is, 
that  such  testimony  preliminary  to  construction  is  for 
the  court  usually. 

§  84.  Wliether  a  contract  is  contrary  to  public  pol- 
icy, is  for  the  court,^*'  although  it  is  held,  in  Iowa,  to 
be  a  question  of  fact  for  the  jury,  whether  the  consid- 
eration in  a  wi'itten  agreement  makes  it  distinctly  a 
wager  contract.^^ 

§  85.  We  notice  now  the  limitations  and  restrictions 
declared  upon  the  exclusive  power  of  the  court  to 
construe  written  contracts.  Where  a  letter,  in  regard 
to  which  there  is  contradictory  evidence,  would  alter 
a  conti'act  as  it  appears  in  other  letters,  the  contents 
of  that  letter  are  for  the  jury,^-  although  it  is  in  gen- 
eral for  the  court  to  determine  whether  letters  pass- 
ing between  parties  constitute  a  contract,^''  and  even 
to  construe  contracts  in  the  light  of  extrinsic  facts 
found  by  a  jury.^*  Wliere  a  parol  contract  is  first 
agreed  upon,  and  afterwards  a  written  contract  is 
made,  it  is  for  the  jury  to  say  whether  the  latter  con- 
tains all  the  terms  of  the  former .^^  And  whether  an 
agreement  to   collect  money  includes  all  of  certain 

^^  Silverthorne  v.  Fowle,  4  ^3  g^^m-j  ^  PauH^ngr  ]2  Gray, 
Jones,  363.  251,  and  Lockhart  v.  Ogden,  30 

20  Pierce  v.  Randolph,  12  Tex.     Cal.  556. 

295.  24  Curtis  v.  Martz,  14  Mich. 

21  Craig  V.  Andrews,  1  Clarke,     513. 

21.  25  Cobb  y    Wallace,   6  Cald. 

22  Sellars  v.  Johnson,  65  N.  C.     (Tenu.)  643. 
105. 

6 


82  QUESTIONS   OF   LAW  AND   FACT.  [Pakt  1. 

notes.^'''  Where  the  meanmg  depends  on  extrinsic 
facts,  which  are  doubted  or  disputed,  the  matter  goes 
to  the  jury,  although  not  if  the  facts  are  certain;  ac- 
cording to  the  decisions  in  Pennsylvania.^^  And 
where  there  is  a  dispute  as  to  whether  a  certain  con- 
tract is  in  writing  or  not,  the  jury  determines  it  on 
evidence.-^  And  where  the  dispute  relates  to  the 
terms,  the  intent  of  the  parties  is  for  the  jury.'"^^  And 
it  has  been  decided  by  the  Supreme  Court  of  the 
United  States,  that  where  a  vessel  was  chartered  to 
bring  a  cargo  of  guano  from  the  Cincha  Islands  to 
the  United  States,  at  the  rate  of  $25  per  ton  freight, 
with  a  stipulation  that  the  ship  should  be  entitled  to 
any  advance  in  the  guano  freight  made  by  the  char- 
terers, and  afterwards  they  chartered  vessels  to  go 
from  the  United  States  for  guano  (reserving  to  the 
charterers  certain  privileges) ,  at  the  rate  of  $30  per 
ton  freight,  it  was  held  a  question  for  the  jury  wheth- 
er the  real  contract  in  the  last  charters  was  to  bring 
home  guano  at  the  rate  of  $30  dollars  per  ton  freight ; 
because  contingent  agreements  between  merchants 
and  ship-owners  must  be  gathered  from  the  language 
employed,  interpreted  in  the  light  of  surrounding  cir- 
cumstances, and  of  the  subject  matter.  And  the  rule 
is  stated  to  be  that  "where  the  effect  of  a  written 
agreement,  collaterally  introduced  as  evidence,  de- 
pends not  merely  on  the  construction  and  meaning  of 

26  Broward  v.  Daggett,  2  Fla.  654  ;  R.  R.  Co.  v.  Cassell,  IT  III. 

49.  394. 

2"  Edelman  v.  Yeakel,  21  Pa.  29  Chapin  v.  Patten,  1  Hilton 

St.  30.  N.  Y.  378. 

28  Jenness  v.  Berry,  IT  N.  H. 


Chap.  YI.]  COKTEACTS.  83 

the  instrument,  but  upon  extrinsic  facts  and  circum- 
stances, the  inferences  of  fact  to  be  drawn  from  it 
must  be  left  to  the  jury."  ^^ 

In  Pennsylvania,  it  is  held  in  general,  that  the  mere 
fact  of  a  contract  being  in  writing  does  not  entitle  the 
court  to  interpret  its  meaning  conclusively  ;  that 
although,  where  it  is  unaffected  by  parol  proof,  it  is 
within  the  province  of  the  court  to  interpret  it;  yet, 
where  the  question  is  not  on  the  interpretation  of  the 
wi'iting,  but  on  its  effect  as  a  collateral  fact,  it  belongs 
to  the  jury.^^  And  where  the  evidence  of  a  contract 
leaves  it  obscure,  by  reason  of  its  consisting  in  part 
of  a  memorandum  in  writing  made  by  defendant  sub- 
sequent to  the  contract,  and  also  in  part  of  certain 
parol  proof,  the  whole  was  held  to  be  properly  sub- 
mitted to  the  jury  to  determine  what  the  contract 
was.^-  And  so,  where  an  instrument,  directed  to  a 
third  person,  was  thus  expressed,  "  There  is  a  balance 
due  the  bearer  $475,"  it  was  held  that  it  was  to  be 
regarded  merely  as  a  memorandum  of  the  fact,  or  as 
conveying  information  thereof;  having  no  legal  sig- 
nificance until  explained,  and  was  not  of  itself  a  con- 
tract for  the  payment  of  money;  and  it  was  for  the 
jury  to  say  what  the  fact  was  of  which  the  instrument 
was  a  memorandum.*' 

Controverted  facts,  on  specific  performance,  go  to 
the  jury,  in  Pennsylvania;  and  it  is  held  to  be  a  ques- 


^  Barr^da  v.  Silsbee,  21  How.  ^  Edwards  v.  Goldsmith,  16 

147.  Pa.  St.  47. 

2^  Reynolds   v.    Richards,  14  ^  Hopson  v.  Bumwankel,  24 

Pa.  St.  208.  Tex.  609. 


84  QUESTIONS    OF    LAW   AND   PACT.  [Part  L 

tion  for  them  whether  there  was  fraud  m  its  making, 
or  an  offer  to  perform.^* 

When,  upon  trial  of  a  cause,  the  evidence  leaves  it 
doubtful  whether  a  written  contract  for  the  sale  of 
goods,  signed  by  the  vendor,  and  delivered  to  the 
purchaser,  was  delivered  absolutely  or  conditionally, 
it  is  for  the  jury  to  determine  the  point.^^ 

§  86.  In  regard  to  parol  contracts,  the  weight  of 
authority  is,  I  think,  that  the  construction  goes  to  the 
jury;  although  the  legal  effect  of  the  terms  thereof  is 
for  the  court.  What  language  was  used,  and  how  it 
was  understood  by  the  parties,  are  matters  for  the 
jury.^**'  So,  whether  a  parol  agreement  was  for  a  cot- 
ton-gin, manufactured  or  to  be  manufactured ;  ^^  oi* 
was  an  agreement  to  pay  the  debt  of  another .^^  And 
in  an  action  of  assumpsit,  wherein  was  alleged  a  parol 
promise  to  pay  a  certain  amount  for  the  conveyance 
to  the  defendant  of  a  portion  of  real  estate,  and 
wherein  the  court  instructed  the  jury  that,  if  they 
believed  the  evidence,  the  plaintiff  was  entitled  to 
recover,  the  instruction  was  held  to  be  error,  since  it 
belonged  to  the  jury  to  determine  the  promise,  if  any, 
in  its  full  purport.^^  And  whether  a  contract  for 
carrying  goods  is  one  of  affreightment  as  a  common 
carrier  or  a  hiring  by  the  job,  specially,  is  for  the 
jury.*"     And  whether  the  making  of  a   contract  on 

3*  Williams  v.  Bentley,  29  Pa.  37  Winship  v.  Buzzard,  9  Rich. 

St.  276.  S.  C.  105. 

35  Scott  V.  Pentz,  5  Sand.  (N.  ^8  Kun's  Ex.  v.  Young,  84  Pa. 
Y.)  576.  St.  62. 

36  Folsom  V.  Pluraor,  43  N.  H.  so  t^^^Jj^  ^  Gregg,  34  Pa.  St. 
471,  and    Herbert  V    Ford,  33  449. 

Me.  93.  40  Fuller  v.   Bradley,  25  Pa. 

St.  120. 


Chap.  VI.]  CON^TKACTS.  85 

Sunday  was  jusiifiable,  in  order  to  determine  as  to 
its  validity  or  invalidity,  is  a  question  of  fact,  in 
Alabama.^^ 

Wliether  facts  proved  are  evidence  of  a  new  agree- 
ment rescinding  a  former  one,  is  for  the  jury  to  deter- 
mine.*- And  it  is  also  the  province  of  a  jury  to  de- 
termine whether  a  written  contract  is  established  by 
the  proof.*^  And  so,  where  the  evidence  is  conflict- 
ing as  to  the  rights  of  the  parties,  under  a  parol  con- 
tract, the  whole  is  a  question  of  fact.** 

The  question  of  performance  of  a  contract  is,  of 
course,  for  the  jury.*^  And  so,  where  a  parol  con- 
tract was  to  deliver  a  certain  number  of  barrels  of  oil, 
but  of  no  specified  capacity,  it  was  held  a  question  of 
fact  whether  the  contract  was  fulfilled  by  the  deliv- 
ery of  a  less  nmnber  of  vessels  of  a  greater  capacity 
than  the  statute  barrel,  when  no  instruction  was 
asked,  that,  in  the  absence  of  a  standard  of  measure- 
ment fixed  by  the  parties,  the  statute  standard  should 
govern.^*^  And  so,  as  to  the  meaning  of  the  phrase  in 
a  buildmg  contract,  "  when  the  walls  shall  be  com- 
pleted," the  meaning  is  for  the  court;  and  the  jury 
are  to  determine  whether  the  necessary  acts  have  been 
done.*^ 

In  accordance  with  the  general  rule,  it  is  for  the 

^1  Hooper    v.     Edwards,    18  ^  Dodge  v.  Rogers,    9  Minn. 

Ala.  283.  224. 

42  Martin  v.  Angell,  8  Barb.  ^^  Cullum  v.  Wagstaff,  48  Pa. 
/N.  Y.)407.  St.  304. 

43  Stake  V.  Burrell,  3  Grant  *'^  Worcester  Med.  Ins.  v. 
(Pa.)  241.  Harding,  11  Gush.  (Mass.)  285. 

44  Kingsbury  v.  Buchanan,  11 
Iowa,  398. 


86  QUESTIOJfS   OF   LAW   AND   FACT.  [Paet  I. 

court  to  inform  the  jury  whether  a  certam  paper 
introduced  in  evidence  is,  or  is  not,  a  contract  fixing 
the  HabiUty  of  the  parties."*^ 

And  also  the  proper  form  of  action  to  be  brought; 
as,  for  example,  whether  trover  for  conversion  of 
property,  or  assumpsit  for  the  value  thereof,  is  for  the 
court.*^  And,  likewise,  whether  a  person  is  entitled 
to  damages  for  the  loss  of  a  contract,  recited  m  one 
on  which  suit  is  brought.^'' 

§  87.  As  to  the  fulfilment  of  conditions,  it  is  held,  in 
California,  that  where  a  draft  is  accepted  conditional- 
ly, to  be  paid  upon  the  happening  of  a  contingency, 
whether  the  contingency  has  happened  is  for  the 
jury.^^  And,  in  I*^ew  York,  that,  where  a  deed  was 
upon  an  express  condition  that  the  grantee  should 
support  and  maintain  the  grantors;  and  that  if  he 
failed  to  do  so  the  land  conveyed  should  revert,  it 
was  proper  for  a  judge  to  leave  it  to  the  jury,  whether 
the  grantee  intended  in  good  faith  to  perform,  and 
had,  in  fact,  substantially  performed,  the  condition 
imposed  by  the  deed.^~  But,  in  Missouri,  Avhere  land 
was  conveyed,  and  notes  given  for  the  purchase 
money,  and,  subsequently,  on  doubts  of  the  grantor's 
title,  it  was  agreed  that,  unless  within  a  reasonable 
time  he  should  make  a  good  title,  the  notes  should 
be  void,  and  he  should  receive  the  land  back,  and 
afterwards  suit  was  brought  on  the  promissory  notes, 

*^  Eiser  v.  Weissgerber,  2  ^  Bridges  v.  Stickney,  38 
Clarke  (Iowa)  4Y9.  Maine,  371. 

49  Estes  V.  Boothe,  20  Ark.  ^i  Nagle  u.  Horner,  8  Cal.  358. 
590."  ^2  Spaulding   v.    Ilallenbeck, 

39  Barb.  84. 


Chap.  VI.]  CONTRACTS.  87 

it  was  held  that  it  belonged  to  the  court  to  determine 
whether  the  grantor  had  made  good  the  title  accord- 
ing to  the  agreement."^  This  decision  was  based  on  the 
doctrine  that  the  natm^e  of  a  title  is  a  question  of  law. 

§  88.  An  abandonment  is  held,  in  l!^orth  Carolma, 
to  be  for  the  court,^  although  this  would  seem  to  be 
quite  a  deviation  from  the  general  principle  that  per- 
formance is  for  the  jury.  And  also  whether  the  con- 
duct complained  of  by  an  employer  against  an  over- 
seer, was  a  suflScient  ground  for  discharging  hun.^' 
On  the  other  hand,  it  has  been  decided  by  the  Circuit 
Court'  of  the  United  States  for  ^ew  York,  Connecti- 
cut, and  Vermont,  that  the  question  of  a  deviation  m 
a  voyage  cannot  be  decided  as  matter  of  law,  nor, 
therefore,  judicially  noticed  by  the  court.^^  In  Mary- 
land, it  is  held  that  what  constitutes  good  cause  foi- 
breaking  up  a  contract  is  for  the  decision  of  the 
court.^" 

§  89.  Whether  a  joint  liability  existed  among  sev- 
eral railroad  companies,  which  had  entered  into  an 
agreement  to  carry  cotton  through  from  Chattanooga 
to  Charleston  at  sixty-five  cents  per  hundi'ed  pounds, 
and  against  one  of  which  suit  was  brought  by  shippers 
for  damage  to  cotton  before  it  reached  the  road  of 
the  defendants,  was  held  to  be  properly  left  to  the 
jury;  because  the  arrangement  was  in  part  dependent 
upon  parol  evidence.^^ 

^  West  V.  Best,  28  Mo.  554.  ^  Brig,  &c.,  v.  Matthews,  2 
54  Duler  V.  Cowles,  t  Jones     Paine  C.  C.  229. 

L.  293.  ^''  Burroughs  v.  Langley,  10 

^5  Ilendrickson  v.  Anderson,     Md.  249. 

5  Jones  L.  248.  58  Bradford    v.   R.  R.   Co.    7 

Rich.  (S.  C.)  214. 


88  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

§  90.  A  new  promise  with  reference  to  the  statute 
of  Hmitations  follows,  in  general,  the  established  rule 
as  to  written  and  parol  contracts;  the  former  being 
for  the  court,  the  latter  for  the  jury.  So,  where  the 
evidence  shows  an  express  promise,  it  is  a  question 
of  law,^^  notwithstanding  it  was  a  verbal  promise. 
And  a  written  acknowledgment  is  held  to  be  for  the 
court.^'^  And  where  the  acknowledgment  arose  from 
an  undisputed  payment  indorsed  on  a  note.*'^ 

On  the  other  hand,  it  is  held  that  an  unplied  prom- 
ise is  for  the  jury;  ^~  although  it  was  held,  in  an  early 
case  in  the  same  state,  that  it  is  not  for  the  jmy  to 
determine  what  acts  or  declarations  amount  to  a  new 
promise. '^^  And  proof  of  the  defendant  saying  that 
the  debt  was  just,  though  at  the  same  tune  he  said  he 
did  not  think  the  creditor  mtended  he  should  pay  it, 
was  left  to  the  jury,  to  determine  therefrom  whether 
there  was  a  new  promise  in  the  case.''^ 

Also,  it  belongs  to  the  jury  to  determine  whether 
the  promise  referred  to  the  debt  in  suit,*'^  and  that,  too, 
where  the  promise  was  contained  in  a  letter ; ""  and 
this  is  an  inference  from  all  the  circumstances.*^^  And, 
also,  it  is  a  question  of  fact  whether  the  declarations 
were  Avith  regard  to  an  individual  liability,  or  to  the 
liability   of    government,   where    suit   was    brought 

59  Evans  v.  Carey,  29  Ala.  99.          ^4  Buswell  v.  Koby,  3  N.  H. 

60  Beasley  v.  Evans,  35  Miss.     467. 

196.  65  Ooojjy  j^Iartin,29Conn.66. 

61  Miller  v.  Talcott,  46  Barb.          66  Dickinson  v.  Lott,  29  Tex. 

112.  ns. 

62  White  z;.Jordan,2T  Me  379.  67  Kimball  v.  Estate  of  Bax- 

63  Miller    v.    Lancaster,    4     ter,  1  Wms.  (Vt.)  632. 
Greenl.  (Me.)  159. 


Chap.  VI.]  CONTRACTS.  89 

against  the  collector  of  the  port  of  IsTew  York,  to 
recover  back  an  excess  of  duties  j)aid  to  hun/'^ 

A  new  promise  after  a  discharge  in  bankruptcy  is 
governed  by  the  same  rules. '^^ 

§  91.  In  matters  of  warranty,  w^here  it  rests  on  oral 
proof,  it  is  a  question  for  the  jury;  and  the  question 
of  unsoundness  is  so  likewise ;  "^  and  the  fitness  of 
goods  for  the  purpose  intended,  ^^  and  whether  words 
concerning  the  age  of  horses,  in  the  act  of  sale,  imply 
a  warranty ; "-  and  whether,  on  the  sale  of  a  cow,  the 
words  "  She  is  all  right "  are  a  warranty  of  her  sound- 
ness.''^ They  are  to  decide  on  an  oral  warranty,  under 
instructions,  what  the  terms  of  the  contract  are,  and 
the  existence  of  the  ingredients  necessary  to  consti- 
tute a  warranty."* 

In  determining  these,  it  is  needful  to  ascertain  the 
mtent  and  understanding  of  the  parties,  since  a  smiple 
afiirmation  is  not  necessarily  a  warranty.'^  Wliether, 
therefore,  it  is  a  mere  expression  of  opinion,  or  of  a 
purpose  to  warrant,  is  a  matter  of  fact  for  the  jury."'' 
It  is  also  the  province  of  the  jury,  on  a  warranty  of 
soundness,  to  decide  what  is  embraced  therein.  And 
on  that  question  the  qualities  and  uses  for  wliich  the 
animal  was  sold  and  purchased,  may  be  referred  to, 


68  Dorr     V.     Swartwout,     1  "^  Ragers   v.    Ackerman,    22 
Blatch.  C.  C.  184.  Barb.  135. 

69  Bennett  v.  Everett,  3  R.  I.  '^  Tuttle  v.  Brown,  4  Gray, 
152  ;    United  Soc.  v.  Winkley,  460. 

*l  G^a3^  460.  "^  Congar  v.  Chamberlain,  14 

'0  Lindsey  v.  Davis,  30  Mo.  Wis.  258. 

412.  '5  Bond  v.  Clark,  35  Vt.  581. 

'1  Prentice  v.  Dike,   6   Duer  ''^  Laume  v.    Gregg,   1    Met. 

(N.  Y.)  224.                   '  (Ky.)  444. 


90  QtTESTIOIfS    or   LAW  AND   FACT.  [Part  I. 

as  exj^laining  what  was  intended  to  be  included  in  the 
warranty.^^ 

§  92.  While  it  is  a  question  of  law  what  constitutes 
a  contract  establishing  a  partnership,  it  is  a  question 
of  fact  whether,  in  any  particular  case,  a  partnership 
exists,  or  not ;  '^  and  so,  where  the  instruction  was, 
"  Whether  liable  to  the  extent  of  the  claim  as  partner, 
or  otherwise,  is  a  question  of  greater  difficulty;  but 
the  court  inclines  to  the  opinion  that  he  is,  and  so  in- 
structs the  jury,"  it  was  held  error;  and  the  court 
observes:  "Whether  a  partnership  existed  or  not,  at 
the  time  when  the  services  sued  for  in  this  action  were 
rendered,  was  a  question  for  the  jury  to  determine, 
upon  the  facts  of  the  case,  under  the  instructions  of 
the  court,  if  instructions  were  asked  as  to  what  in  law 
constituted  a  partnership ;  but  here  the  fact  of  part- 
nership is  assumed  by  the  court,  and  the  jury  specially 
instructed  that  the  defendant  is  liable."  '^  And  a 
partnership  may  be  proved  by  the  acts  and  dealings, 
conduct,  admissions,  and  declarations,  as  between 
themselves  and  towards  others.^"  And  whether  a 
clerk,  whose  deposition  has  been  taken  in  a  cause, 
was  a  secret  partner  or  not,  was  held  to  be  properly 
submitted  to  the  jury.^^ 

§  93.  And  x^artnership  property  is  also  a  question 
of  fact;  as  where  two  partners  signed  a  petition  in 
insolvency,  and  while  this  was  pending,  one  of  them 

''~  Thornton   v.  Thompson,  4  ^^  Robinson   v.  Greene's  Ad- 

Gratt.  (Va.)  121.  ministrator,  5  Uarr.  (Del.)  117. 

^^  McMullan  v.  McKenzie,  2  ^^  Hunter    v.    Hubbard,     26 

Greene  (Iowa)  369.  Tex.  545. 

'9  Daggett  V.  Jordan,  2  Fla. 
549. 


Chap.  VI.]  CONTRACTS.  91 

was  Tvilled  by  the  cars  before  the  presentation  of  the 
petition  to  the  court  of  insolvency,  and  the  judge,  not 
knowing  the  death,  issued  a  warrant  in  the  usual 
form;  the  usual  pubhcation  being  made,  at  which 
tune  the  death  was  known;  a  considerable  sum  of 
money  was  found  on  the  person  of  the  deceased,  and 
a  dispute  arose  whether  this  was  private  money  or 
partnership  assets,  it  was  held,  in  an  action  against 
the  coroner  by  the  administrator,  that  the  question 
was  for  the  jury;  it  appearmg  that  a  portion  of  the 
money  was  received  by  him  m  payment  of  a  debt  due 
the  firm,  and  mingled  with  his  own  money .^'  And 
also,  where  a  partner  borrows  money,  the  question 
whether  it  was  on  his  own  credit  or  that  of  the  firm, 
is  a  question  of  fact,  and  the  admission  of  the  borrow- 
ing partner  may  be  considered  in  order  to  bind  the 
firm.^^ 

§  94.  As  to  a  partnership  liability,  for  money  or 
stock  used  in  the  course  of  business,  the  determination 
is  with  the  jury;  as  where  one  borrowed  gold  dust 
from  another  in  order  to  form  a  partnership,  in  which 
the  gold  dust  was  used  as  stock;  and  afterwards  the 
question  arose  as  to  the  liability  of  the  fii'm  to  the 
lender,  and  the  point  of  fact  was  submitted  to  the 
jury  whether  the  gold  dust  was  put  in  as  capital  by 
the  borrower  in  entering  the  partnership,  or  was  taken 
and  used  by  the  firm  on  their  joint  credit,  the  submis- 
sion was  held  proper.^ 

^2  Durgin  v.  Coolidge,  3  Allen         ^  Donally   V.   Ryan,  41   Pa 
(Mass.)  555.  St.  308. 

^^  Webster  v.  Stearns,  44  N. 
H.  502 


92  QUESTIONS   OP   LAW   AND   PACT.  [Part  I. 

The  terms  of  a  contract  for  the  adjustment  of  dif- 
ferences between  copartners,  in  the  settlement  of  their 
firm  business,  should  be  ascertained  by  a  jury;  as, 
where  one  is  to  take  the  assets  on  dissolution,  and 
pay  the  debts,  whether  it  was  meant,  or  intended, 
between  the  parties,  that  a  debtor  should  pay  that 
one  member  a  debt  owing  to  the  fii-m,  and  this  be 
accounted  as  part  of  the  assets.^^ 

§  95.  In  contracts  of  bailment,  where  one  whose 
princij^al  occupation  is  farming,  but  occasionally,  and 
at  certain  seasons,  is  accustomed  to  carry  goods  for 
any  who  may  employ  him,  for  hire,  whether  he  ought 
to  be  held  to  the  resj)onsibility  of  a  public  carrier,  or 
only  to  that  of  a  private  carrier,  in  a  case  where  a 
wagon  load  of  goods  was  burned,  is  for  the  jury  to 
determine.^''  And  whether  a  bailment  is  gratuitous 
or  for  hire,  is  also  a  question  of  fact.^^ 

Also,  the  character  of  goods,  when  the  point  is  as 
to  the  kind  usually  carried  for  hire;  as,  where  the 
proof  was,  that,  although  it  was  the  uniform  custom 
of  steamboats  to  carry  cash  letters,  yet  no  charge  was 
made  for  such  service  unless  a  receipt  was  demanded 
by  the  sender,  when  a  percentage  price  was  taken  by 
the  boat  officers,  it  was  held  to  be  for  the  jury  to 
determine  whether  a  particular  lost  money  package 
belonged  to  the  kind  of  packages  which  the  boat 
undertook  to  carry  for  hire.^^ 

§  96.    The  matter  of  comparative  risk  has  been  de- 

85  Carl  V.  Knott,  16  Iowa,  384.          ^r  Dimmick  v.  E.  R.  18  Wis. 

86  Haynie  v.  Baylor,  18  Tex.     4H. 

607.  88  Knox  V.  Eives,  14  Ala.  257. 


Chap.  VI.]  CONTEACTS.  93 

cided  to  be  a  question  of  fact.  Thus,  in  an  action  by 
a  carrier  against  a  railroad  company  for  not  carrying 
a  package  to  Leeds  in  reasonable  time,  and  for  not 
delivering  it,  it  appeared  that  the  plaintiif  was  a  col- 
lector of  small  parcels  in  London  to  be  forwarded, 
and  also  a  carrier  for  one  certain  individual.  The  first 
—  general  collection  —  were  made  into  a  single  parcel 
called  a  "packed  parcel;"  the  second  —  individual 
collection  —  were  called  "  enclosures."  The  company 
charged  a  higher  rate  for  the  former  than  the  latter. 
And  the  jury  were  held  the  proper  judges  of  the  fact 
whether  there  was  a  difference  of  risk  between  carry- 
ing the  "  j^acked  parcels  "  and  the  "  enclosures."  ^^ 

Where,  by  mistake,  a  clause  in  a  bill  of  lading,  lim- 
iting the  responsibility  of  the  carrier,  was  inserted,  or 
left  in,  the  question  of  mistake  was  held  to  be  for  the 
consideration  of  the  jury.°° 

In  the  matter  of  liability  on  the  part  of  innkeepers, 
where  the  statute  provides  that  there  shall  be  no  lia- 
bility for  money,  valuables,  &c.,  not  deposited  w^th 
the  innkeeper  for  safe-keeping,  on  notice  to  the  guest^ 
and  a  guest  had  had  stolen  from  his  room,  his  watch 
with  chain  attached,  a  gold  pen,  and  pencil-case,  and 
twenty-five  dollars  in  money,  it  was  held  that  the 
statute  did  not  include  small  sums  of  money  kept 
about  the  person  of  the  guest  for  ready  money  in 
reasonable  expenses,  and  that  it  is  for  the  jury  to  say 
what   "  reasonable   expenses "   may  include."'      And 

89  Crouch    V.    R.  R.    Co.    34  »!  Gile   v.    Libby,    36    Barb. 

Eng.  L.  &  Eq.  577.  (N.  Y.)  76.      See  also  Maltby 

^^  Chouteaux  v.  Leech,  18  Pa.  v.  Chapman,  25  Md.   316,   and 

St.  232.  Merrill  v.  Grinnell,  30  N.  Y.  597. 


94  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

what  articles  constitute  "  baggage  "  is  a  question  of 
fact,"^  to  be  determined  by  usage  of  travellers  gener- 
ally, as  to  what  they  carry  in  their  trunks.®^ 


CHAPTER  yn. 

Intention,  E^nowledge,  and  !N"otice. 

§  97.  TiiE  question  of  intention  sometimes  comes 
to  the  court,  but  usually  to  the  jury.  Thus,  in  the 
case  of  the  delivery  of  a  deed,  if  the  circumstances 
are  not  disputed,  it  is  a  question  of  law;  but  if  there 
is  conflicting  evidence,  the  needful  parol  proof  draws 
it  to  the  consideration  of  the  jury.^  Where,  however, 
a  subscribing  witness  to  a  deed  testified  that,  imme- 
diately after  the  execution  of  the  deed,  the  grantor 
handed  it  to  the  mother  of  the  infant  grantees,  with 
the  words  "  Keep  it,"  it  was  held  that,  whether  it  was 
the  grantor's  intention  to  make  this  a  delivery,  was  to 
be  determined  by  the  jury,  under  the  instructions  of 
the  court.' 

§  98.  When  the  intention  of  one  who  executes  a 
writing  is  to  be  judged  of  by  the  writing  per  se,  it  is 
a  question  of  law ;  but  when  a  writing  is  to  be  judged 
of  by  exti'insic  facts,  and  is  part  of  a  transaction  of 
which  the  rest  consists  of  words,  or  acts,  the  whole 

S2  Whittaker  v.  Clark,  37  Ga.  ^  Carnes  v.  Piatt,  How.  Prac. 

249.  R.  (N.  Y.)102. 

^3  Grant  v.  Newton,  1  E.  D.  ^  Gregory  v.  Walker,  38  Ala. 

Smith  (N.Y.)  96.  33. 


Chap.  VII.]    IXTEXTIOX,    E:X0^T.EDGE,    XOTICE.  95 

evidence  should  go  to  the  jury  together.^  This  is  the 
general  rule.  Under  it,  it  has  been  held  that  whether 
a  note  was  signed  by  a  person  as  trustee,  or  as  an  in- 
dividual payor,  is  to  be  decided  by  the  court,  in  view 
of  the  language  of  the  note,  the  circumstances  under 
which  it  was  executed,  and  the  situation  of  the  par- 
ties.^ But  whether  a  deed  absolute  on  its  face  was 
executed  under  such  circiunstances,  and  arrangement 
betAveen  the  plaintiff  and  his  brother,  as  to  rtnder  it 
a  mortgage  instead  of  a  deed,  was  held  a  question  of 
fact.^  And  so  the  good  faith  of  a  chattel  mortgage  is 
held  a  question  of  fact/'  And  where  a  sale  of  land 
was  made  for  four  hundred  dollars,  and  afterwards  a 
bond  executed  by  the  vendee  to  the  vendor,  promising 
to  reconvey  the  land  to  the  vendor  within  two  years 
for  eight  hundred  dollars,  it  was  held  that  the  jury 
might  ascertain,  from  all  the  transactions  between  the 
parties,  whether  the  deed  was  in  the  nature  of  a  mort- 
gage to  secure  the  loan  of  four  hundred  dollars  to  be 
repaid  with  eight  hundred  dollars  in  two  years,  and 
whether  the  agreement  was  usurious  or  not/  And 
parol  evidence  is  admissible  to  show  the  intention  of 
the  execution  of  the  instrument/ 

§  99.  With  what  intent  or  motive  the  purchaser  of 
a  railroad  bond  acted,  where  the  bond  bore  upon  its 
face  a  certificate  signed  by  persons  describing  them- 
selves as  trustees,  and  declaring  that  the  bonds  are 

3  Winter  v.  Norton,  1  Oreg.  "'  Bishop  v.  Williams,  18  111. 

45.  104. 

^  Lewis  V.  Harris,  4  Met.  355.  ^  McCarron    v.    Cassidy,    18 

^  Bemis  v.  Phelps,  41  Vt.  4.  Ark.  49 ;    Parish  v.   Gates,  29 

6  Miller  v.  Lockwood,  32  N.  Ala.  254. 
Y.  298. 


96  QUESTIO]S'S    OF   LAW   A^O)   FACT.  [Part  I. 

secured  by  a  first  mortgage  to  them,  iii  trust  for  the 
bondholders,  is  a  matter  of  fact.  The  court,  in  ruhng 
thus,  said,  "The  certificate  subjoined  to  the  bond  con- 
stitutes no  part  of  the  instrument,  and  consequently 
the  representation  contained  in  it  does  not,  in  any 
respect,  control  or  modify  the  obligation  of  the  bond, 
nor  in  any  manner  vary  or  affect  the  rights  or  respon- 
sibilities of  the  parties  to  it.  It  is  simply  an  affirma- 
tion that  the  estate  mortgaged  as  security  for  the 
ultimate  payment  of  their  dues  to  the  bondholders,  is 
subject  to  no  prior  similar  incumbrance.  Under  cer- 
tain circumstances,  such  a  representation  might  have 
an  important,  even  a  controlling,  influence  in  forming 
a  judgment  concerning  the  real  or  marketable  value 
of  the  bonds ;  for  a  knowledge  of  the  fact  stated  is 
essential  to  anything  like  an  accurate  estimate  of  the 
value  of  the  security,  and  consequently  it  may  be  of 
the  bonds  secured  also.  The  affirmation  of  the  cer- 
tificate appended  to  the  bond  sold  to  the  defendant, 
must  therefore  be  considered  to  have  been  made  in 
relation  to  a  material  fact,  which  would  have  been  not 
unlikely,  in  itself,  to  produce  an  influence  upon  his 
judgment,  and  an  efi'ect  upon  this  action.  But  not 
necessarily  so.  This  is  to  be  determined,  not  alone 
upon  the  representation  itself,  but  upon  all  the  circum- 
stances attending  the  transaction;  and  it  is  in  view 
of  all  these  that  the  question,  whether  there  was  in 
fact  a  WTTanty,  must  be  determined;  and  this  must 
be  submitted  to  and  decided  by  a  jury.  To  the  exist- 
ence of  that  contract,  it  is  essential  that  the  defendant 
should  have  received  and  relied  upon  the  affirmation 
in  assenting  to,  or  in  consummating,  the  contract  con- 


Chap.  VII.]     INTEXTIOX,   KNOWLEDGE,   NOTICE.  1)7 

cerning  the  sale  and  purchase  of  the  bond  between 
himself  and  the  railroad  company.  If  he  did  not  re- 
ceive nor  rely  npon  it  at  all,  and  was  not  influenced 
by  it,  and  did  not  act  upon  the  faith  of  it,  in  making 
the  bargam,  there  was  no  warranty  by  the  vendors, 
and  their  affirmation  could  not  have  constituted  any 
part  of  the  consideration  for  his  note  to  them;  and 
therefore  he  had  no  defence  to  set  up  against  it.  The 
instruction  of  the  presiding  judge  brought  this  ques- 
tion, directly  and  distinctly,  to  the  consideration  of 
the  jury;  for  they  were  advised  that  the  defendant 
could  not  legally  claim  any  deduction  for  his  note  on 
account  of  any  damages  sustained  by  him,  unless  they 
were  satisfied,  upon  the  whole  e\adence,  that  he  was 
induced  to  pay  his  money  and  give  his  note,  wholly 
or  in  part,  by  a  reliance  on  the  truth  of  the  represen- 
tation made  in  the  certificate."  ^ 

And  thus,  also,  as  to  an  inducement  to  buy,  it  is 
held,  that  where  one  bought  a  chattel  from  one  who 
was  not  the  owner  of  it,  and  it  was  found  by  the  jury 
as  a  fact  that  he  was  induced  to  buy  by  the  acts  or 
declarations  of  the  real  owner,  the  latter  is  estopped 
from  again  clahning  it.^° 

§  100.  An  intention  to  deceive  is  a  question  of  fact 
also.  Thus,  in  an  action  for  deceit,  where  the  defend- 
ant was  alleged  to  have  represented  falsely  that  a 
third  person  was  worthy  of  credit,  it  was  so  held;  and 
the  court,  in  argument,  said,  "In  the  points  pro- 
pounded by  the  plaintiff's,  the  court  was  requested  to 


^  Edwards  V.  Marcy,  2  Allen         '^^  Mason  V.Williams,  8  Jones 
(Mass.)  491.  (N.  C.)  480. 

7 


98  QUESTIONS   OF   LAW   AND   FACT.  [Paet  I, 

instruct  the  jury  respecting  the  liability  arising  out 
of  false  representations  and  fraudulent  concealment. 
ISTow,  if  the  representations  were  false,  and  yet  were 
honestly  believed  to  be  true,  and  if  the  existence  of 
the  judgment  -  bond  was  not  mentioned  through 
thoughtlessness,  and  without  intention  to  deceive,  the 
liability  of  the  defendants  for  damages  was  not  made 
out.  Guilty  knowledge,  and  an  intent  to  deceive, 
were  essential  to  the  plaintiff's  recovery,  and  they 
were  charged  in  the  declaration.  To  warrant  a  ver- 
dict for  the  plaintiffs,  they  must  have  been  found  by 
the  jury.  And  it  was  not  for  the  court  to  withdraw 
the  question  ft^om  the  jury,  as  they  would  have  done 
had  they  affirmed  the  plaintiff's  second  point,  without 
more."  '^ 

And  where  a  person  purchased  cabinet  furniture 
on  credit,  having  previously  confessed  a  judgment 
for  a  large  amount  in  favor  of  other  parties,  and  very 
soon  after  the  purchase  executing  a  chattel  mortgage 
on  his  entire  stock  in  trade,  including  the  furniture 
purchased  from  the  plaintiffs,  to  secure  the  payment 
of  f  3500  due  the  defendant,  and  the  sheriff,  witliin  a 
month  or  two  after  the  sale,  having  several  executions 
against  the  purchaser,  which  he  had  to  return  unsat- 
isfied, an  action  was  brought  by  the  vendors  of  the 
purchase  against  the  mortgagee  to  avoid  the  sale,  and 
recover  the  property,  and  it  was  held,  1.  That  mere 
insolvency  could  not  avoid  the  sale ;  and  though  the 
purchaser  laiew  himself  to  be  insolvent,  yet,  as  he  had 
made  no  false  representation  as  to  his  standing,  if  he 

"  Graham  v.  Hollinger,  46  Pa.  St.  67. 


Chap.  YII.]      INTEXTION",    KNOWLEDGE,   NOTICE.  99 

purchased  the  furniture  with  the  honest  intention  of 
continuing  his  business,  and  paying  for  the  same  if  he 
could,  the  sale  was  not  avoidable  on  the  ground  of 
fraud.  If,  however,  the  purchase  was  made  with  a 
Imowledge  of  his  insolvency,  and  yet  with  an  inten- 
tion of  subjecting  the  furniture  to  the  judgment  previ- 
ously confessed,  or  to  the  subsequent  mortgage,  the 
fraud  would  vitiate  the  sale ;  and  2.  That  the  question 
presented  in  the  action  to  recover  the  property  under 
mortgage,  was  one  of  motive,  namely,  whether  the  pur- 
chasei*  acted  with  an  honest  or  fraudulent  design;  and 
that  it  was  error  to  withhold  this  from  the  jury.'^ 

It  is  held,  also,  that  it  is  not  enough  to  avoid  a  sale 
of  goods,  that  the  purchaser  did  not  intend  to  pay  for 
them  at  the  agreed  time.  To  prevent  the  title  from 
passing,  he  must  intend  never  to  pay  for  them;  and 
this  is  a  question  of  fact.^^  And  on  this,  the  Supreme 
Court  of  Missouri  observes,  "  There  is  a  very  broad 
line  of  distinction,  both  in  morals  and  law,  between 
the  conduct  of  one  who  gets  property  into  his  posses- 
sion, with  a  preconceived  design  never  to  pay  for  it, 
under  color  of  a  formal  sale  induced  by  a  sham  prom- 
ise to  pay,  which  the  party  never  intends  to  comply 
with,  and  the  conduct  of  a  man  deeply  involved  in 
debt,  far,  perhaps,  beyond  his  means  of  payment,  and 
who,  struggling,  it  may  be,  and  frequently  is,  against 
all  rational  hope,  to  sustain  his  credit  and  maintain 
his  position  in  business,  buys  property  to-day  under 
a  promise  to  pay  for  it  on  short  time,  in  order  to  raise 
money,  from  day  to  day,  to  meet  immediate  and  more 

^  Buckley  V.  Archer,  21  Barb.  ^^  Bidault  v.  Wales,  30  Mo. 
585.  550. 


100  QUESTIONS    OP   LAW   AND   FACT.  [Pakt  I, 

pressing  demands.  Yet,  under  the  instruction,  the 
jury  may  well  have  supposed,  and  no  doubt  did  sup- 
pose, that  the  law  made  no  distinction,  but  visited 
both  classes  of  cases  with  the  same  legal  consequen- 
ces. The  difference  between  not  intending  to  pay  on 
the  day  fixed  by  the  contract,  and  intending  never  to 
pay;  between  getting  property  for  nothing,  under  the 
mere  color  of  a  purchase,  and  getting  it  upon  a  longer 
credit  than  was  agreed  upon  by  the  parties,  but  with 
an  expectation  ultimately  to  pay,  is  entirely  lost  sight 
of;  or  rather,  indeed,  as  it  seems  to  us,  the  jury  are, 
in  effect,  instructed  that  there  is  no  difference,  and 
that  it  is  enough,  in  this  particular,  to  avoid  the  sale 
as  a  fraudulent  purchase,  that  the  purchaser  was  una- 
ble to  pay  at  the  time  agreed  upon,  and  aAvare  of  his 
inability  in  this  respect,  and  did  not  intend  to  meet 
his  engagements  in  point  of  time.  It  was  said  before, 
and  is  repeated  now,  that  this  is  a  question  for  a  jury, 
under  proper  instructions  from  the  court." 

And  a  fraudulent  intent,  accordingly,  in  the  sale  or 
disposition  of  property,  is  a  question  of  fact." 

§  101.  And,  likewise,  in  general,  the  question  of 
abandonment;  this  being  a  matter  of  intention  large- 
ly, as,  lor  example,  of  a  homestead  by  change  of 
domicil.' '  But  sometimes  the  abandonment  of  posses- 
sion of  land  is  for  the  court,  where  it  is  merely  infer- 
able from  lapse  of  time,  and  the  rule  is  thus  laid 
down  in  Brentlinger  v.  Hutchinson,  1  "Watts,  46,  and 
quoted  m  a  subsequent  case,  refen^ed  to  in  the  foot 

1*  Maple  V.  Burnside,  22  Ind.  ^^  Locke  v.  Eowell,  47  N.  H 

139,  and   Miller  v.  Stewart.  24     49. 
Cal.  502. 


Chap.  VII.]        IXTENTIOIT,   KN^OWLEDGE,    NOTICE.  101 

references  below :  "  Wliere  there  is  no  dispute  as  to 
the  length  of  tune,  it  is  a  question  of  law  to  be  decided 
by  the  court  without  regai'd  to  the  intention  of  the 
j)arty.  Wlien  the  question  of  abandonment  is  made 
upon  a  lapse  of  time  less  than  seven  years,  accompa- 
nied by  circumstances  from  which  it  might  be  inferred 
that  the  party  intended  to  abandon,  it  is  a  mixed  ques- 
tion of  fact  and  law  to  be  submitted  to  the  decision 
of  the  jury."  ^'''  The  rule,  however,  does  not  seem  to 
have  been  veiy  closely  followed  in  Pennsylvania. 

And  in  Vermont,  it  is  held  that,  in  a  case  of  prior 
possession,  a  lapse  of  fifteen  years  or  more  between 
difierent  acts  of  possession  was  not  conclusive  evi- 
dence of  abandonment ;  and  the  court  say,  "  We  ap- 
prehend it  must  always  be  a  question  of  fact,  whether 
a  prior  possession  has  been  abandoned  or  not.  Lapse 
of  time,  whether  it  be  somewhat  less  or  more  than 
fifteen  years,  might  go  to  the  jury,  as  furnishing  some 
evidence  to  prove  an  abandonment,  but  the  weight  of 
it  would  be  to  be  judged  of  by  the  jmy  under  the 
circumstances  of  each  particular  case;  and  if,  on  tne 
whole,  a  presumption  is  to  be  drawn  of  an  abandon- 
ment, it  is  a  presumption  of  fact  and  not  of  law."  ^^ 
And  abandonment  under  Spanish  law  is  likewise  for 
the  jury,^*^  and  therein,  it  is  to  be  decided  upon  all  the 
circumstances.  And  the  abandonment  of  a  right  to 
an  easement.^^  And  of  an  assignment  for  the  benefit 
of  creditors.^*' 

16  Whitcomb  v.  Hoyt,  30  Pa.  ^^  Fine    v.    St.   Louis   Public 

St.  410.  Schools,  30  Mo.  1T5. 

1'  Patchin  v.  Stroud,  38  Vt.  ^^  Parkins  o.  Dunham,  8 
395.  Strobh.  (S.  C.)  226. 

20  AVilson  v.  Pearson,  20 111.87. 


102  QU:ESTI0NS   of   law   and   fact.  [PartL 

§  102.  It  is  a  question  of  fact,  where  a  will  was  im- 
perfectly executed,  as  to  the  intention  of  the  testator, 
that  the  will  should  not  dispose  of  personal  property 
therein  mentioned,  unless  it  could  also  take  effect  as 
to  the  realty."^ 

As  to  the  revocation  of  a  will,  it  is  for  the  court; 
but  the  acts,  conduct,  and  declarations  of  the  maker 
are  circumstances  to  be  found  by  the  jury;  as  where 
a  maker  burned  a  paper  by  mistake,  supposing  it  to 
be  her  will,  and  died  in  the  belief  that  the  will  was 
thus  destroyed.^" 

§  103.  A  question  of  ratification  by  a  principal,  is 
for  the  court;  unless  the  evidence  is  uncertain,  when 
it  should  go  to  the  jury.'^ 

§  104.  An  intention  of  adverse  possession  is  for  the 
jury.~^  And  whether  the  acts  of  a  devisee  show  an 
intention  of  taking  possession  under  a  will.'^  And 
the  ouster  of  a  co-tenant.~'' 

§  105.  Intention  of  purchasing  or  selling.  Thus, 
where  an  absolute  deed,  with  other  instruments  oper- 
ating as  a  defeasance,  be  simultaneously  executed, 
these  all  together  form  a  mortgage ;  and  it  is  for  the 
court  to  pronounce  on  their  legal  effect.  But  where 
the  alleged  defeasance  is  executed  subsequently,  it  is  a 
question  of  fact,  whether  the  transaction  was  designed 
as  a  security  for  money,  or  as  a   sale.^''     And  where 

21  Fatheree  v.  Lawrence,  33  ^^  Landis  v.  Landis,  1  Grant 
Miss.  628.  (Pa.)  249. 

22  Smiley  v.  Gambill,  2  Head  26  Moore  v.  Callishaw,  10  Pa. 
(Tenn.)  165,  St.  230. 

23  Commercial  Bank  v.  Jones,  27  Wilson  v.  Executor,  31  Pa. 
18  Tex.  816.  St.  298. 

2*  Magee  v.  Magee,  3t  Miss. 
149. 


Chap.  VII.]        IXTENTIOX,   KNOWLEDGE,   XOTICE.  103 

redemption-money  is  received  after  the  statutory  peri- 
od of  redemption  of  land  sold  for  taxes  has  passed, 
whether  it  is  a  redemption  or  a  sale,  according  to  the 
intention  of  the  parties,  is  a  question  of  fact.^  And 
where  a  third  person  pays  the  amount  of  a  note,  and 
takes  possession  of  it,  whether  he  mtended  to  purchase 
it,  or  pay  it  for  the  mere  accommodation  of  the  maker, 
is  for  the  jury.-^  And  where  evidence  left  it  doubtful 
whether  a  transaction  amounted  to  a  purchase,  or  a 
discount  of  a  note,  it  was  held  that  the  judge  should 
not  have  decided  the  question  as  matter  of  law,  but 
left  it  to  the  determination  of  the  jury.^°  And,  also, 
whether  the  parties  intended  a  sale  to  take  immediate 
effect,  and  the  price  to  be  fixed  or  payment  made  at  a 
future  time,  is  matter  of  fact.'^^ 

§  106.  The  terms  of  the  delivery  of  a  contract, 
where  it  is  left  in  duplicate  by  the  parties  with  a  third 
person,  and  the  evidence  as  to  the  subsequent  delivery 
and  operation  thereof  is  conflicting,  are  a  matter  of 
fact,  depending  upon  the  intention  of  the  parties,  to 
be  gathered  from  the  whole  transaction;  and  it  was 
held  that,  in  such  case,  the  court  was  right  in  refus- 
ing to  instruct  that  delivery  in  a  particular  mode  was 
necessary;  and,  in  some  measure,  the  matter  rested 
on  the  nature  and  provisions  of  the  contract  itself, 
which  was  also  thereby  subjected  to  interpretation  by 
the  jury.'^^ 

2«  Cree  v.  AValcott,  27  Pa.  St.  v.  Executors,  Hill  &  Denio,  N. 

159.  Y.  254. 

29  Rumfan  v.  Clark,  4  Jones  ^i  Fuller  v.    Bean,  34  N.  H. 

L.,  N.  C.  53.  299. 

^  American  Life  Ins.,  &c.,  Co.  ^^  Jaquith  v.  Hudson,  6  Mich. 


104  QUESTIONS   OF   LAW   AND   FACT.  [Paet  I. 

§  107.  The  delivery  of  a  part  of  property  sold, 
where  there  is  a  receipt  acknowledging  payment,  is  a 
question  of  intention,  as  to  whether  the  part  delivery 
was  to  be  a  transfer  of  the  title  to  the  whole,  and  is 
to  go  to  the  juiy."^^ 

§  108.  Where  premises  are  rented,  and  there  is  a 
reservation  in  the  lease  of  the  right  to  sell  at  any  time, 
foi'  a  particular  purpose,  any  part  of  the  land,  and 
where,  by  virtue  of  such  reservation,  a  portion  is  sold, 
and  the  question  arises  whether  it  was  in  good  faith 
for  the  purjDose  specified  in  the  lease,  it  is  a  matter  of 
fact.^* 

§  109.  ^Tiere  a  statute  authorizes  interest,  in  addi- 
tion to  damages,  as  to  money  which  has  been  vexa- 
tiously  withheld,  it  is  a  question  of  fact,  whether,  on 
an  action  for  breach  of  contract,  such  interest  shall 
be  allowed,  and  the  court  will  not  mterfere  with  the 
verdict  unless  it  is  clearly  manifest  that  the  jury  have 
abused  then'  discretion  herein.^' 

§  110.  A  formal  settlement  of  accounts  2Jrima  facie 
includes  all  accounts.  But  where  a  question  arises  in 
any  case,  as  to  whether  a  particular  item  was,  or  was 
not,  embraced  in  a  settlement,  it  is  proper  for  the  jury 
to  decide  what  was  settled.^*'  Also,  where  there  are 
two  claims,  —  one  barred  by  limitation,  the  other  not, 
—  and  a  sum  of  money  is  paid  without  a  specific  ap- 
propriation by  the  debtor,  it  is  a  question  of  fact 
whether  the  payment  was  made  generally,  on  account 

33  Pratt  V.  Chase,  40  Me.  273.         §5  Rogers  v.  West,  9  Ind.  401. 
31  Muzzy  V.  Den,  1  Dutch.  N.  36  Rourke  v.  Jaraes,  4  Gibbs 

J.  472.  (Mich.)  338. 


Chap.  VII.]       INTENTIOIN^,   KIN^OWLEDGE,   NOTICE.  105 

of  whatev^er  debts  existed,  or  on  one  or  the  other  par- 
ticular accounts."^^ 

§  111.  As  to  which  tract  of  unseated  lands  (there 
being  no  government  survey  to  guide) ,  an  assessment 
of  taxes  was  laid  upon,  tliis  goes,  it  seems,  to  the  jury, 
notwithstanding  it  is,  at  least  in  part,  determinable 
from  records.^** 

§  112.  In  England,  it  is  held  that  to  evict  a  tenant 
it  is  not  necessary  that  there  should  be  an  actual  ex- 
pulsion from  any  portion  of  the  land,  but  any  act  of 
the  landlord,  or  of  another  as  the  agent  of  the  land- 
lord, or  by  his  procurement,  with  the  intention  of  per- 
manently depriving  the  tenant  of  the  enjoyment  of 
the  premises  as  demised,  or  any  part  thereof,  will 
operate  as  an  eviction,  and  the  question  of  such  inten- 
tion is  a  matter  of  fact."^^ 

§  113.  As  to  whether,  under  certain  circumstances, 
money  was  lent  to  a  tenant,  or  advanced  to  the  land- 
lord, it  is'  held  in  England  to  be  a  question  for  the 
jury.  The  circumstances  were  that  a  tenant  was  in 
arrears,  and  the  landlord's  agent,  without  his  author- 
ity or  knowledge,  took  a  bill  of  exchange  from  the 
tenant  for  the  amount  of  the  rent,  and  then  paid  over 
the  amount  of  the  rent  to  the  landlord  in  his  settle- 
ment of  account.  Afterwards  the  bill  was  dishon- 
ored in  the  hands  of  a  third  party,  and  so  the  rent 
was  not  paid  by  the  tenant;  whereupon  the  landlord 
distrained;  and   it   was   held   to   be   for  the  jury  to 

3'  Walker  v.  Butler,  31  Eng.  39  Upton  v.  Townsend,  33 
L.  &  E.  14.  Eng.  L.  &  E.  212. 

^  Ruesel   v.    Wentz,  24  Pa. 
St.  345. 


106  QUESTIONS   OF   LAW   AND   FACT.  [Part  1. 

decide  whether  the  bill  was  discounted  for,  or  the 
money  lent  by,  the  agent  to  the  tenant,  or  was  an  ad- 
vance by  the  agent  to  the  landlord;  as,  in  the  former 
case,  the  landlord  could  distrain;  otherwise  not.^" 

And,  similarly,  whether  materials  were  furnished 
on  the  (U'edit  of  a  contractor,  or  of  a  building  with 
the  intention  of  enforcing  a  lien,  is  matter  of  fact.^^ 

§  114.  An  intention  of  warranty  need  not  be  ex-' 
pressed  in  any  particular  form,  but  the  words  em- 
ployed by  the  seller  must  be  understood,  not  as  an 
expression  of  opinion,  but  as  an  absolute  assertion; 
and  how  the  words  were  taken  or  understood  by  the 
parties  is  a  question  of  fact.^-  And  it  must  be  the 
intention  of  the  vendor  that  his  words  shall  be  an 
inducement  to  the  purchase,  and  the  acceptance  of  or 
reliance  upon  those  words  on  the  part  of  the  buyer  is 
also  essential,  as  a  motive  for  his  purchase;  and 
whether  these  elements  exist  is  for  the  jury  to  de- 
cide ;  ^^  for  a  warranty  is  essentially  part  of  the  con- 
tract, so  that  words  merely  expressive  of  opinion  do 
not  amount  to  it,  since  therein  is  no  mutualit}^^^ 

§  115.  AYhether  there  is  a  gift  or  not,  also,  is  fact, 
depending  on  intention;  as,  for  instance,  whether  it 
is  a  gift  or  a  loan,*^  to  be  inferred  from  the  circiun- 
stances  of  the  case ;  ^^   always,  however,  necessarily 

^^  Parnett    ?^    Anderson,    14  ^  Henson  v.   King,    3   Jones 

Eng.  L.  &  E.  371.  L.  (N.  C.)  420. 

4^  Odd  Fellows  v.  Masser,  24  ^^  Respass  v.  Young,  11  Geo. 

Pa.  St.  511.  116. 

*2  Rogers    v.    Ackerman,    22  ^^  Deveaux     v.    Deveaux,     1 

Barb.  135.  Strobh.   Eq.  283. 

*3  Edwards   v.    Marcy,  2   Al- 
len (Mass.)  490. 


CuAP.  VII.]     EN^TENTION,   KIN'OWLEDaE,    NOTICE.  107 

inclusive  of  delivery  and  acceptance.*^  A  promise  to 
give,  to  take  effect  at  some  future  time,  as  upon  the 
decease  of  the  promisor,  not  accompanied  by  any 
delivery,  is  void.*^  And  whether  an  actual  gift  is 
absolute  or  conditional,  is  a  question  of  fact.*^  And 
whether  services  are  gratuitous  or  not,  as  where 
plamtiff,  on  an  appointment,  rendered  services  to  a 
corporation  as  treasurer,  without  any  arrangement 
for  compensation,  and  there  was  evidence  tendmg  to 
show  that  he  only  expected  remuneration  from  inci- 
dental advantages  arising  from  his  connection  as  a 
partner  with  another  officer  of  the  company .^*^ 

§  116.  "Whether  the  statement  of  a  party  introduced 
as  evidence  is  to  be  regarded  as  an  admission,  or  only 
as  an  offer  of  compromise,  where  objection  is  made  to 
its  admission  as  evidence  in  the  case,  may  be  deter- 
mined by  the  court,  or  may,  in  the  discretion  of  the 
court,  be  submitted  to  the  jury,  under  instructions  to 
disregard  it  if  they  find  it  to  have  been  merely  a 
proposition  or  offer  of  compromise." 

§  117.  A  parol  submission  to  arbitration  is  matter 
of  fact  to  be  determined  by  the  jury  from  the  words 
used,  the  meaning  attached  to  them  by  the  parties, 
and  the  cu'cumstances  of  the  utterance, '^^ 

§  118.  Whether  a  sale  is  absolute  or  conditional  is 
for  a  jury,  the  burden  of  evidence  being  on  him  who 
affii-ms  its  absolute  quality,  or  else  the  performance 

^''  Betts  V.  Francis,  1  Vroom,  ^  Pendleton  v.  Stone  Dress- 

N.  J.  153.  ing  Co.  19  N.  Y.  19. 

48  Frost  V.  Adncinistrator,  33  ^^  Bartlett  v.  Hoyt,  33  N.  H. 
Vt.  645.  165. 

49  Halbert  v.  Halbert,  21  Mo.  ^^  Houghton  v.  Houghton,  37 
278.  Me.  74. 


108  QUESTIONS   OF   LAW   A:NT)   FACT.  [Paut.  I. 

of  the  condition  precedent.^^  Also  where  there  was 
a  verbal  contract  to  sell  and  deliver  cotton,  at  a  cer- 
tain time  and  place,  and,  about  the  time  appointed,  a 
postponement  was  made  by  mutual  consent,  and  it 
was  agreed  also  that  the  contract  should  be  reduced 
to  writing,  which,  however,  was  not  done ;  and  on  the 
last  day  appointed,  the  agent  of  the  seller,  and  the 
buyer  himself,  met  at  the  designated  place,  and  the 
buyer  told  the  agent  he  should  release  him  from  the 
contract,  but  the  agent  made  a  tender  of  the  cotton, 
which  the  buyer  refused  to  accept,  it  was  held,  in  an 
action  by  the  seller  for  the  breach,  that  it  was  a  ques- 
tion for  the  jury  whether,  by  the  second  agreement, 
the  parties  intended  that  the  original  contract  should 
not  be  binding  unless  reduced  to  ^vi^iting,  or  only  that 
they  should,  by  reducing  it  to  wiiting,  mutually  have 
more  certain  evidence  of  what  the  contract  was.^ 

§  119.  Criminal  intent  is  within  the  province  of 
the  jury,  exclusively;  as  with  what  intent  a  child  was 
forcibly  taken  from  its  parents;^"*  and  an  intent  of 
usury  where  it  does  not  appear  on  the  face  of  an  in- 
strument.^'"' In  regai'd  to  an  intent  to  kill,  the  jury 
are  not  to  be  instructed  that  every  man  is  presumed 
by  the  law  to  intend  the  necessary  and  probable  con- 
sequences of  his  acts,^"  but  a  specific  intent  to  Idll 
must 'be  shown  ;^^  although  whei^e  there  is  an  indict- 
ment for  malicious  stabbing  with  intent  to  kill,  the 

^  Sawyer  v.  Spofiford,  4  Gush.  230  ;  Mitchell  v.  Napier,  22  Tex. 

598.  128. 

^  Adams    v.  Davis,   16    Ala.  ^t  ^^q  gt^te  v.  Biddle,  29  Mo. 

V50.  420. 

55  Oliver  v.  State,  IT  Ala.  596.          ^8  jgg-  [-^  glave]  v.  State,  3t 

56  Orru.  Lacy,  1  Doug. (Mich.)  Miss.  321. 


Chap.  VIT.]     INTENTION",   E^^^OWLEDGE,    NOTICE.  109 

prisoner  (in  Kentucky)  may  be  convicted  of  a  lower 
degree  of  that  offence ;  ^^  as,  also,  if  one  be  indicted 
for  an  assault  with  mtent  to  commit  murder,  he  may 
(in  Iowa)  be  legally  convicted  of  an  assault  and  bat- 
tery.^  It  is  not  sufficient  to  prove  a  general  felonious 
intent,  but  the  particular  intent  to  kill;  but  it  is  held 
that,  in  the  decision  of  the  question  concerning  the 
intention,  the  jury  should  act  on  all  the  presumptions 
recognized  by  the  law,  and  also  their  own  judg*ment 
and  ex]^)erience,  as  applied  to  all  the  circumstances  of 
the  case  in  evidence/'^ 

And  in  torts,  also,  it  is  a  question  of  fact  whether 
one  mtended  to  defraud  by  a  conveyance,  or  in  good 
faith  make  provision  for  wife  and  children.^- 

§  120.  Whether  lands  have  been  actually  reserved 
for  school  purposes  by  the  Treasurer  of  the  United 
States,  under  act  of  Congress,  is  held  to  be  a  question 
of  fact,  and  the  court  erred  in  deciding  that  it  was  a 
legal  presumption  in  a  case  of  that  kind.*"'^ 

§  121.  In  Maine,  it  is  held  that  the  teacher  of  a  dis- 
trict school  cannot  sue  for  wages  unless  having  re- 
ceived certificates  of  qualification.  But,  also,  that  if  it 
was  not  the  pleasure  of  a  town  to  refuse  payment  for 
services  so  rendered  because  the  teacher  had  neglected 
to  comply  with  the  provisions  of  the  statute,  and  if 
the  town,  accordingly,  has  paid  to  the  agent  of  the 
disti^ict  the  amount  which  would  be  required  to  pay 

^^  Tyra  v.   Commonwealth,  2         ^^  Rgford  v.  Cramer,  1  Vroom, 

Met.  1.  N.  J.  251. 

^^  Dixon  V.  State,  3   Clarke,          ^3  Dicken's  Lessee  v.   Maha- 

416.  na,  21  How.  278. 

61  Ogletree  v.  State,  28  Ala. 
693. 


110  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

the  instructor,  and  for  his  use,  and  it  was  so  received 
by  the  agent,  it  would  thereby  become  the  property 
of  the  teacher  in  the  hands  of  the  agent,  and  could 
be  recovered  by  suit  against  the  agent.  And  wheth- 
er money  has  been  so  paid  and  received,  is  for  the 
jury/'' 

§  122.  A  legal  arrest  may  take  place  without  the 
actual  imposition  of  the  hands  of  an  officer,  but  with 
words  on  his  part,  and  words  of  submission  on  the 
part  of  the  person  against  whom  the  warrant  is 
issued,  with  the  intention  to  arrest  understood  by 
both  parties.  And  in  such  case  it  was  held  error  for 
the  court  to  decide  the  question  of  intention.''^ 

§  123.  Where  there  is  a  contract  of  service  for  a 
certain  time,  and  the  employed  leaves  his  employer 
before  the  expiration  of  the  time,  it  is  held  a  question 
of  fact,  in  a  suit  for  wages,  whether  the  plaintiff  had 
justifiable  cause  for  leavmg  in  consequence  of  ill 
usage.''''' 

§  124.  An  intention  of  waiver  is  also  for  the  jury, 
ordinarily.  Wliether  a  conversion  of  property  is 
waived,  is  held  a  mixed  question  of  law  and  fact,  to 
be  submitted  to  the  jury  under  proper  instructions."^ 
"A  question  of  waiver  is  one  of  intention  usually, 
and  depends  on  acts  or  declarations  which  are  of  an 
inconclusive  or  doubtful  character,  furnishing  only 
grounds  of  inference,  and  which,  therefore,  it  is  the 
apjDropriate   province   of  a  jury   alone   to   consider. 

64  Dore  V.  Billings,  26  Me.  60.         ^6  Chapman  v.  CofBn,  14  Gray, 
6^  Jones  V.  Jones,  13  Ire.  N.     454. 
C.  448.  ^"  Traynor     v.     Johnson,     \ 

Head  (Tenn.)  51. 


Chap.  YII]       rN^TEIfTIO:N",    KN^OWLEDGE,    XOTICE  111 

The  eases  are  very  rare  where  the  court,  as  a  matter 
of  construction,  can  cletermme  whether  the  acts  or 
declarations  of  a  party  constitute  a  waiver.'"'^ 
Whether  a  new  subsequent  agreement  concerning 
terniis  of  rental  operates  as  a  waiver  or  surrender  of 
the  oi'iginal  lease,  is  matter  of  fact/'^  But  the  ques- 
tion whether  the  renewal  of  a  note  for  piu'chase 
money,  including  also  other  considerations,  is  a 
waiver  of  a  vendor's  lien,  is  held  matter  of  law.'" 
And  also  the  waiver  of  demand  and  notice  in  relation 
to  a  bill  of  exchange,  arising  from  the  circumstances 
of  the  case,  is  for  the  courtJ^  And,  also,  where  all 
the  facts  and  circumstances  are  admitted,  the  question 
of  waiver  is  matter  of  lawJ^ 

An  administrator  may  waive  the  copy  of  a  claim; 
but  the  facts  and  circumstances  are  to  be  shown  by 
the  claimant,  and  whether  they  amount  to  a  waiver  is 
for  the  jury/^ 

And  where  there  is  conflicting  evidence  as  to  the 
design  of  a  mortgagee  in  possession  who  holds  pos- 
session after  the  release  of  his  judgment,  it  is  a  ques- 
tion of  fact  whether  he  intends  thereby  to  waive 
foreclosure/* 

And  whether  acceptance  of  a  part  was  intended  to 
be  a  waiver  of  the  remainder,  under  certain  "^ircum- 

^s  Fitch   V.  Iron   Works,    29  ''^  Insurance  Co.  v.  Evans,  9 

Conn.  92.  Md.  1. 

C9  White   V.  Walker,  31    111.  '3  Guines    v.  Bush,  16  Ark. 

436.  64T. 

'0  Minis  V.  Lockett,  23  Geo.  '^  Couch  v.  Stevens,  8T  N.  H. 

241.  IH. 

'1  Orear  v.  McDonald,  9  Gill 
(Md.)  354. 


112  QUESTIONS   or   LAW   AJXD   FACT.  [Paut  I. 

stances.'^  And  the  court  of  Alabama  remarked  that 
"ordinarily  the  acceptance  of  a  jiart  performance 
without  objection,  is  regarded  as  a  waiver  of  the  en- 
tire fulfilment  by  the  other  party."  And  whether  a 
waiver  is  intended  of  the  lien  for  freight,  where  goods 
forwarded  were  partly  removed  by  the  owner,  to 
whom  a  bill  of  lading  had  been  sent,  without  paying 
freight."" 

"Where  a  party  to  a  composition  agreement  among 
creditors  accepted  the  percentage  allowed  thereby, 
and  delivered  thereon  to  the  debtor  his  note,  but  only 
on  a  promise  to  pay  the  remainder  or  secure  it,  the 
question  whether  she  had  waived  her  right  to  refuse 
to  carry  out  the  composition  agreement,  was  held  one 
of  fact.^^ 

§  125.  What  constitutes  a  domicile  is  a  question  of 
law,  but  so  far  as  it  depends  on  facts,  the  question  of 
domicile  is  one  of  fact,^^  as  whether  a  person  removing 
from  one  town  to  another  intends  to  change  his  res- 
idence,"^ and  whether  an  improvement  was  made  with 
the  purpose  of  a  continued  residence ;  ^^  and  whether 
one  has  a  permanent  abode  who  leaves  the  countiy, 
and  has  his  family  remain  with  a  relative.^^ 

§  126.  "Wliere  an  apparently  independent  contract 
in  writing  is  sought  to  be  made  dependent  by  facts 

"i^  Wolfe  V.  Parham,  18  Ala.  '^  Inhab.  of  Fitchbuig  v.  In- 

449.  hab.    of  Winchendon,   4    Cush. 

76  Boggs    V.    Martin,    13   B.  194. 

Mon.  244.  ^^  Jones  v.  Brownfield,  2  Pa. 

-'  Cobleigh  v.  Pierce,  32  Vt.  St.  60. 

795.  ^1  Adrn'r   v.     Abernathy,    37 

^s  Pennsylvania    v     Ravenel,  Mo,  198. 
21  How.  110. 


Chap.  VII.]      IXTEN^TIOI^,    KNOWLEDGE,   NOTICE.  \\^ 

connected  with  its  making,  it  is  a  question  of  fact 
whether  the  contracts  were  dependent.^^ 

§  127.  In  Hke  manner,  the  question  of  knowledge 
is  one  of  fact,  as,  in  the  case  of  defects  in  a  nego- 
tiable instrument,  whether  the  purchaser  knew  thereof 
so  as  to  be  chargeable  with  a  lack  of  good  faith .^'^ 
And  where  the  condition  of  a  deed  was,  that  "  in  case 
any  ardent  spirits,  cordials,  or  wines,  shall  be  kept,  or 
sold,  on  any  part  of  the  premises,  or  in  any  build- 
ing erected  or  to  be  erected  thereon,  the  deed  shall 
become  void,  and  of  no  effect,"  and  a  tenant  vio- 
lated the  condition,  the  question  arose  as  to  the 
grantee's  knowledge  of  such  violation,  and  his  dil- 
igence in  regard  to  knowing  thereof,  it  was  held  to 
be  a  question  of  fact.^^  Wliere  a  wagon  was  attached 
in  the  hands  of  one,  and  another  claimed  the  OAvner- 
ship,  but  it  appeared  in  evidence  that  the  former  lived 
only  a  few  miles  from  the  latter,  and  had  the  wagon 
in  constant  use  as  his  own,  and  declared  it  to  be  his 
ovm,  it  was  held  that  whether  the  claimant  knew  of 
such  acts  of  ownership  was  a  question  of  fact,  to  be 
determined  in  view  of  all  the  circumstances.^^ 

§  128.  Likewise  knowledge  of  the  payment  of  a 
bill  of  exchange,  where  the  second  of  a  set  of  bills 
was  presented,  and  protested  owing  to  the  drawee's 
absence,  and  nine  days  after  the  first  of  exchange 
came  to  hand,  when  it,  with  the  costs  of  the  protest, 
was  paid,  and  two  months  afterwards  suit  was  com- 

82  Younger  v.  Welch,  22  Tex.  ^4  Collins  Manuf.  Co.  v.  Mar- 

425.  ■  cy,  25  Conn.  246. 

^^  Goodman    v.   Simonds,    20         ^^  Avery     v.    Clemmens,     18 

How.  356.  Conn.  309. 

8 


114  QUESTIONS   OF   LAW   ANT*   FACT.  [Part  I. 

menced  on  the  protested  bill,  which  suit  led  to  an 
action  for  malicious  prosecution,  whether  the  plaintiffs 
in  the  suit  on  the  bill  knew  that  it  was  paid  at  the 
tinie  they  sued  on  it,  was  held  to  be  for  the  jury  to 
decide.^" 

So  the  knowledge  of  a  person  by  a  witness  cannot 
be  determined  by  the  court.^'' 

And  in  regard  to  accidents,  a  knowledge,  by  the 
owner,  of  the  mischievous  disposition  of  a  dog,  where 
a  minor  son  of  the  plaintiff  was  bitten  by  the  animal, 
was  properly  referred  to  a  jmy  for  consideration,  to- 
gether with  the  question,  as  to  the  estimation  of  dam- 
ages, whether  the  plaintiff  had  relinquished  his  claim, 
previous  to  the  accident,  to  his  son's  services  by  an 
agreement  to  give  the  son  fifty  cents  per  day  for 
working  for  him.^ 

In  a  case  where  an  employee,  ten  years  of  age,  was 
working  in  a  factory,  and  became  entangled  in  the 
machinery,  and  injured,  the  question  of  his  laiowledge 
of  the  hazards  of  the  employment  arose,  under  the 
general  rule,  as  thus  enunciated  by  the  court:  "Every 
manufacturer  has  a  right  to  choose  the  machinery  to 
be  used  in  his  business,  and  to  conduct  that  business 
in  the  manner  most  agreeable  to  himself,  provided  he 
does  not  thereby  violate  the  law  of  the  land.  He  may 
select  his  appliances,  and  run  his  mill  with  old  or  new 
machinery,  just  as  he  may  ride  in  an  old  or  new  car- 
riage, navigate  an  old  or  new  vessel,  or  occupy  an  old 

^  Weaver  v.  Page,  6  Cal.  ^^  Arnold  V.  Norton,  25  Conn. 
684.  95. 

^^  Dickinson  v.  Lovell,  35  N. 
H.  11. 


Chai'.  VII. ]     INTEN^TIOIN',    KN^OWLEDGE,   XOTICE.  115 

or  new  house,  as  he  pleases.  The  employee,  havuig 
knowledge  of  the  ch^cnmstances,  and  entering  his  ser- 
vices for  the  stipulated  reward,  cannot  complain  of 
the  peculiar  taste  and  habits  of  his  employer,  nor  sue 
him  for  damages  sustained  in  and  resulting  from  that 
peculiar  service.  .  .  .  An  employee,  having  knowl- 
edge, cannot  claim  indemnity,  except  under  peculiar 
circumstances.  He  is  not  secretly  or  involuntarily 
ex^DOsed,  and  likewise  is  paid  for  the  exact  position 
and  hazard  he  assumes ;  and  so  he  may  terminate  his 
emplo}anent  when,  from  unforeseen  perils,  he  finds 
his  reward  inadequate  or  unsatisfactory.  We  need 
hardly  remark,  that,  as  this  distinction  rests  upon 
knowledge  in  the  employee,  it  is  quite  obvious  that 
he  miY3t  have  mind  sufficient  to  acquire  the  necessary 
knoAvledge.  How  the  fact  was  in  the  present  case 
(the  plaintiff  being  ten  years  old),  we  will  not  under- 
take to  decide.  If  the  fact  was  important,  we  think 
it  should  have  been  submitted  to  the  consideration  of 
the  jury." '' 

§  129.  Closely  allied  with  the  subject  of  knowledge 
is  that  of  notice.  The  sufficiency  of  notice  is  a  ques- 
tion of  law ;  as,  for  example,  where  the  facts  are  found, 
what  is,  or  is  not,  sufficient  notice  of  payment  to 
charge  an  indorser,^  as  evidenced  by  a  notarial  certifi- 
cate.^^  Wliere  parol  evidence  is  resorted  to,  the  jury 
finds  the  facts,  but  the  legal  sufficiency  is  still  for  the 
court.^^    Also,  the  sufficiency  of  service  of  a  written 

89  Hayden  v.  Manuf.  Co.  29  ^^  Ricketts  v.  Pendleton,  U 
Conn.  558.  Md.  330. 

90  Sherer  v.  Bank,  33  Pa.  St.  ^2  Stanley  v.  Bank,  23  Ala. 
141.  657. 


116  QUli:STIONS   or   law   AXD   fact.  [Pakt  I 

notice,  either  personal  or  by  the  post-office,  as  the 
residence  of  the  debtor  may  be  Avithin  or  Avithout  the 
city;  ^^  although,  as  to  notice  through  the  post-offices, 
in  cases  not  governed  by  the  law  merchant,  as  nego- 
tiable paper,  but  by  the  common  hiw,  and  notice  is 
required  to  be  proved,  notwithstanding  the  maiUng  of 
a  notice  Avith  a  proper  direction,  Avhich  is  yet  prima 
facie  evidence  that  it  Avas  receiA^ed,  but  not  conclu- 
sive, and  may  be  rebutted,  it  is  for  the  jury  to  say 
Avhether  the  reception  has  been  rebutted.^^  It  is  a 
question  of  laAV  Av^hether  a  refusal  to  accept  or  pay  a 
draft  Avas  notified  in  reasonable  time;  although  it  is 
for  the  jury  to  find  the  fact  of  refusal  itself.  It  is 
also  a  question  of  law  Avhether  an  assignee  of  a  draft 
delivered  on  account  of  a  prior  debt  has  used  due 
diligence  in  trying  to  recover  the  sum  assigned,  from 
the  parties  on  the  draft,  liable  to  the  assignor.-'^  And, 
in  general,  where  the  facts  are  admitted,  due  diligence 
in  giving  notice  of  dishonor  is  for  the  court ;  but 
Avhere  the  facts  are  disputed,  they  should  be  deter- 
mined by  the  jm*y,  under  hypothetical  instructions  of 
the  court.^*' 

In  England,  it  is  held  that,  in  every  case  where  a 
demand  of  payment  is  made  on  a  draAvee  or  indorsee 
by  the  holder,  on  the  proper  day,  it  is  a  question  for 
the  jury  whether,  under  the  circumstances,  there  Avas 
sufficient  notice  of  dishonor.'*^    And  by  the  Supreme 

93  Nevins  v.  Bank,  10  Mich.  ^  Linville  v.  Welch,  29  Mo. 

550.  204. 

9*  Walworth    v.    Seaver,    30  9"  Paul    v.  Joel,    3   Hurl.    & 

Vt.  730.  Nor.  463  ;  Weeton  v.  Ilodd,  26 

^5  Brooks    V.    Elgin,    6    Gill  Eng.  L.  &  E.  278. 
(Md.)  259. 


Chap.  VII.]     INTENTIOIs',    KNOWIiEDGE,   NOTICE.  117 

Court  of  the  United  States  it  is  held,  that  where  a  bill 
of  exchange  is  scheduled  by  an  insolvent,  it  is  suffi- 
cient notice,  when  the  fact  is  found  by  the  jury.^'^  And 
whether  a  holder,  who  has  taken  negotiable  paper 
with  notice  of  defences,  has  exercised  good  faith  and 
proper  care,  is  for  the  jury  to  decide.^"  And  also 
notice  of  the  transfer  of  an  account  is  matter  of  fact.^^^ 

Whether  possession  of  a  vendee  with  an  unrecorded 
deed  is  of  such  a  character  as  to  charge  with  notice  a 
subsequent  purchaser,  is  for  the  jury  also ;  ^^^  as,  for 
example,  a  purchaser  at  a  sheriff's  sale  of  an  equitable 
title,  which  had  been  assigned  to  another  by  the 
debtor,  and  the  assignment  not  recorded.^"^ 

IS^otice  of  want  of  authority  to  negotiate  a  bill  of 
exchange,  on  the  part  of  a  seller,  to  the  purchaser, 
from  the  words  "  second  of  exchange ;  first  unpaid," 
is  a  question  of  law.^°^ 

In  the  case  of  printed  notices  on  contracts,  as  where 
a  steam-tug  is  hired  at  different  times  to  tow  a  vessel 
out  of  a  harbor,  and  on  payment  the  owner  received 
a  receipt  from  the  master  of  the  tug,  on  the  back  of 
which  receipt  was  printed  a  notice  that  the  owner  of 
the  tug  would  not  be  answerable  for  the  negligence 
of  servants,  and  finally  an  accident  occurred  through 
alleged  negligence,  it  was  held  a  question  of  fact 
whether  the  contract  was  made  on  the  terms  of  the 
printed  notice  or  not.'"^     And,  in  Massachusetts,  it  is 

98  Hyde  v.  Stone,  20  How.  173.  102  Rhines  v.  Baird,  41  Pa.  St. 

99  Roth  V.  Colvin,  32  Vt.  131.     264. 

lO"^  Saltmarsh    v.    Bower,    22  103  Bank  ?;.Neal,22How.  108. 

Ala.  232.  104  Symonds  V.  Pain,  6  Hurl. 

101  Ponton  V.  Ballard,  24  Tex.  &  Nor.  712. 
621. 


118  QUESTIONS   OF   LAW   A^T)   TACT.  [Pakt  I. 

held  that  a  printed  notice  on  the  back  of  a  passage 
ticket  furnishes  no  presumption  of  knowledge  by  the 
passenger  of  the  limitations  thus  imposed  by  the  com- 
pany, as  to  the  transportation  of  his  baggage;  and 
whether  he  knew  of  the  notice  before  connnencing 
the  journey,  is  a  matter  of  fact.^^^  ' 

Whether  one  has  actual  notice  of  the  dissolution  of 
a  partnership  is  likewise  for  the  jury.^^^ 

A  usage  for  guests  at  an  inn  to  leave  their  money 
or  valuables  on  deposit  with  the  proprietor  or  clerk, 
does  not  bird  a  guest  without  actual  notice;  which 
actual  notice  is  a  question  of  fact.^*^ 

"Where  there  was  an  outstanding  contract  between 
the  payor  and  payee  of  a  note,  and  the  note  contained 
the  words  "  in  according  to  contract,"  it  was  held  no 
error  to  leave  to  the  jury  the  question  whether  the 
words  were  so  unusual,  taken  in  coimection  with  all 
the  other  facts,  as  to  convey  notice  to  a  purchaser  of 
the  note  that  there  was  such  an  outside  contract. '*^^ 

Legal  notice  and  constructive  notice  is  for  the 
court.  ^^'^ 

105  Brown  v.  R.  R.  Co.  11  ^^s  Campbell  v.  Rusch,  9  la. 
Cush.  99.  344. 

106  Deford  v.  Reynolds,  36  Pa.  109  Birdsall  v.  Russell,  29  N. 
St.  384.  Y.  249. 

107  Berkshire  Woollen  Co.  v. 
Proctor,  7  Cush.  417. 


Chap.  VIII.]        IDENTITY  AND   ALTERATION.  119 


CHAPTER  Ym. 

Identity  and  Alteeation. 

§  130.  "Where  a  note  is  misdescribed  in  a  mort- 
gage, it  is  for  the  court  to  determine,  from  all  the 
circumstances,  whether  a  particular  note  is  the  one 
secured  by  the  mortgage ;  and  if  the  intention  is 
apparent  upon  the  whole,  no  error  in  the  details  of 
description  will  prevail  against  the  equities  of  the 
mortgage/ 

§  131.  Where  an  agreement  declared  that  A  had 
sold  to  B  his  stock  of  goods  in  a  certain  town,  it  was 
held  a  matter  of  fact  whether  certain  particular  goods 
belonged  to,  or  formed  part  of,  that  stock.- 

§  132.  In  a  prosecution  for  larceny  of  treasury 
notes,  where  it  was  shown  by  the  CAidence  that  cer- 
tain notes  claimed  to  be  identical  with  those  stolen 
had  been  found  at  a  place  where  the  prisoner  had  con- 
cealed them,  it  was  held  error  for  the  court  to  instruct 
the  jury  that  "  one  note  was  positively  identified,"  as 
the  question  of  identity  was  for  the  jury  to  determine, 
and  the  court  therein  stated  the  effect  of  the  evidence 
instead  of  the  evidence  itself.^ 

§  133.  Wliere  the  same  name  occurs  in  two  differ- 
ent deeds,  so  that  the  question  of  identity  arises  as  to 
the  grantee  in  a  prior  deed  and  the  grantor  in  a  sub- 

1  Prescott  V.  Hayes,  43  N.  2  knight  y.  Parker,  25  111.  593. 
H.  596.  3  Hill  V.  State,  U  Wis.  680. 


120  QUESTIONS   OF   LAW   AXD   FACT.  [Part  I. 

sequent  deed  being  the  same  person,  it  was  held  to  be 
for  the  jury,  and  not  for  the  court,  either  as  a  ques- 
tion of  law,  or  a  preliminary  one  of  fact  to  be  decided 
before  the  admission  of  the  deed  in  evidence ;  and  the 
party  must  satisfy  the  jury,  when  he  produces  the 
deed,  of  the  identity,  or  otherwise  the  deed  will  be 
disregarded  for  not  showing  the  transmission  of  the 
title  of  the  previous  grantee.* 

§  134.  The  identity  of  pai*ties  is  a  question  of  fact ; 
as  in  a  prosecution  for  having  committed  perjury  in 
an  action  of  bigamy,  wherein  the  appellant  had  sworn 
she  was  never  man^ied  to  the  prisoner,  and  the  prose- 
cution for  perjury  resulted  in  conviction,  the  court, 
on  appeal,  said,  "  The  jury  was  instructed  that,  unless 
there  was  some  extraneous  fact  in  evidence  to  raise  a 
doubt  of  the  identity  of  the  parties,  this  was  to  be 
presumed  by  the  court.  This  we  think  was  error. 
We  think  the  question  was  one  of  fact,  and  not  of 
law;  and  that  it  was  therefore  tlie  provmce  of  the 
jury,  and  not  of  the  court,  to  judge  whether  the  mar- 
riage record  was  alone  evidence  strongly  corroborat- 
ing the  witness  as  to  the  marriage  of  these  identical 
persons.  The  names  being  the  same  was  a  fact  from 
which  the  jury,  not  the  court,  might  di-aw  an  infer- 
ence; it  was  some  evidence;  but  whether  sufl&cient  or 
not,  it  was  not  for  the  court  to  say."  ^  And  where  a 
former  conviction  is  pleaded,  it  is  for  the  jury  to  de- 
termine whether  the  party  con\dcted  was  the  same  as 
the  party  under  indictment  in  the  later  prosecution.^ 

^  Carleton    v.   Townsend,   28         ^  g^ate  v.  Robinson,  39  Me. 
Cal.  221.  154. 

"  Hendricks  v.  State,  26  Ind. 
494. 


Chap.  VIII.]        IDEKTITY   AND    ALTERATIOI^.  121 

And  so  as  to  claimants  of  land,  as  purchasers,  or 
lieii's/  And  it  is  held  that  there  is  no  legal  presump- 
tion that  one  bearing  the  name  of  the  son  of  a  certain 
person  is  one  of  the  heirs ;  but  the  jury  is  to  decide 
the  matter  upon  concomitant  circumstances;  such  as 
identity  of  name,  residence  of  the  claimant  and  other 
members  of  the  family.^ 

And  the  question  of  idem  sonans,  as  whether  Mea- 
ley  is  of  the  same  soimd  with  Maley,  or  Malay,  Avhen 
it  comes  up  on  the  trial  of  an  indictment,  in  evidence 
on  the  general  issue,  is  one  of  fact.^  But,  on  de- 
murrer, it  is  a  question  for  the  court,  in  Missouri;  so 
decided  by  a  divided  court,  however.^*' 

In  Maine,  it  is  held  that  where  there  is  a  judgment 
rendered  against  a  corporation  by  a  name  variant  from 
the  one  in  their  charter,  and  the  question  arises  on  an 
action  against  the  sheriff  for  trespass  in  levying  an 
execution,  as  to  whether  the  corporation  were  in  fact 
the  party  to  the  judgment,  it  is  a  question  for  the 
jury." 

§  135.  The  question  of  the  same  cause  of  action  in 
different  suits,  as  where  a  former  judgment  is  pleaded, 
and  the  issue  thereon  is,  whether  such  a  former  judg- 
ment has  been  rendered,  is  a  question  of  law,^~  though 
it  may,  if  not  pleaded,  go,  it  seems,  m  evidence  to  the 
jury,  under  the  general  issue.'^    Where,  in  tort,  there 

^  Greene  v.  Barnwell,  11  Ga.  ^^  State  v.   Hawley,  21   Mo. 

285.  499,  504. 

^  Freeman  v.  Loftis,  6  Jones         ^^  Manuf.   Co.  v.   Butler,   34 

L.  (N.  C.)  528.  Me.  438. 

^  Commonwealth  v.  Donovan,  ^^  Weathered  v.  Mays,  4  Tex. 

13  Allen,  572  ;    citing  11  Gray,  389 ;  Finley  v.  Ilanbest,  30  Pa. 

322,  323,  and  14  Gray,  400.  St.  194. 


122  QUESTIONS    OF   LAW  AND   FACT.  [Part  I. 

is  a  confession  that  tlie  plaintiff  has  suffered  injury, 
but  the  question  arises  whether  it  is  the  same  injury 
as  that  revealed  b}'^  the  evidence,  it  is  held  a  question 
of  fact.'^ 

§  136.  The  identity  of  articles  patented  is  pi-obably 
the  most  common  question  of  the  kind,  and  arises 
chiefly  in  actions  for  infringement.  Thus  whether 
two  instruments,  or  machines,  are  the  same ;  ^*  and 
this  is  for  the  jury.  And  so,  where  an  "improve- 
ment "  was  patented,  and  the  specifications  described 
the  pieces  of  mechanism,  and  their  peculiar  qualities, 
and  the  manner  of  combination  and  the  result,  it  was 
held  that  an  admission  by  the  plaintiff  that  pieces  of 
mechanism  like  his  in  general  nature,  and  employed 
for  "  various  purposes,"  was  not  an  admission  that  his 
machine  was  the  same  as  others ;  and  the  fact  whether 
it  was  or  not,  was  to  be  determined  by  the  jury.'^ 
And  where  a  patent  is  renewed,  and  the  question 
arises  whether  the  renewal  is  for  the  same  invention. ^^ 

But,  in  England,  although  the  evidence  showed 
some  difference  in  the  manner  of  working,  it  was  held 
that  the  court  decided  the  question  properly,  and  di- 
rected the  verdict.^^  And  it  is  held,  in  the  United 
States,  that,  in  a  court  of  equity,  it  is  discretionary 
for  the  court  to  send  to  the  jury  the  question  whether 
a  reissued  patent  is  for  the  same  hivention  as  the 
original.^^ 

13  Corey  U.Bath,  35  N.H.  549.     bury  &  Minot.  (U.  S.)  C.  C.  R. 

14  Tucker    v.     Spalding,     13     127. 

Wall.  455.  1'  Bush  v.  Fox,  38  Eng.  L.  & 

15  Turrill  v.  Mich.  Southern     E.  1. 

R.  R.  Co.  1  Wall.  491.  i^  Poppenhusen    v.   Falke,   4 

16  Allen    V.    Blunt.  2   Wood-     Blatchf.  C.  C.  493. 


Chap.  VIIL]        IDENTITY  AND   ALTERA.TION'.  123 

§  137.  Whether,  under  the  law  of  copyright,  a  cer- 
tain chart  is  a  copy  of  another,  or  is  the  result  of  an 
independent  survey,  is  for  the  jury.  And  if  there  is 
only  a  small  variance,  whether  the  alteration  is  only 
colorable,  and  the  one  is,  in  substance,  a  mere  tran- 
script of  the  other.^°  A  note  m  the  report  of  this 
case,  quoting  from  Lord  Mansfield  in  a  sunilar  case, 
sets  forth  the  rule  thus,  in  submitting  the  matter  to 
the  jury :  "  The  rule  of  decision  in  this  case  is  a  matter 
of  great  consequence  to  the  country.  In  deciding,  we 
must  take  care  to-  guard  against  two  extremes,  equally 
prejudicial,  —  the  one,  that  men  of  ability,  who  have 
emplo^^ed  their  time  for  the  service  of  the  conununity, 
may  not  be  deprived  of  their  just  merits,  and  the 
reward  of  their  ingenuity  and  labor;  the  other,  that 
the  world  may  not  be  deprived  of  improvements,  nor 
the  progress  of  the  arts  be  retarded.  The  act  that 
SQCures  copyi'ight  to  authors  guards  against  the  puacy 
of  the  words  and  sentiments ;  but  it  does  not  prohibit 
writing  on  the  same  subject,  —  as  in  the  case  of  his- 
tories, and  dictionaries.  In  the  first,  a  man  may  give 
a  relation  of  the  same  facts,  and  in  the  same  order  of 
time;  in  the  latter,  an  interpretation  is  given  of  the 
identical  same  words.  In  all  these  cases,  the  question 
of  fact  to  come  before  a  jury  is,  whether  the  alteration 
be  colorable  or  not;  there  must  be  such  a  smiilitude 
as  to  make  it  probable  and  reasonable  to  suj^pose  that 
one  is  a  transcript  of  the  other,  and  nothing  more 
than  a  transcript.  So,  in  the  case  of  prints,  no  doubt 
different  men  may  take  engravings  from  the  same 

1'  Blunt  V.  Patten,  2  Paine,  402. 


124  QUESTIONS    OF   LAW   AK^D    TACT.  [Part  I. 

pictures.  The  same  principle  holds  with  regard  to 
charts.  Wlioever  has  it  m  his  intention  to  publish  a 
chart  may  take  advantage  of  all  prior  publications. 
There  is  no  monopoly  of  the  subject  here,  any  more 
than  in  the  other  instances;  but,  upon  any  question 
of  this  nature,  the  jury  will  decide  whether  it  be  a 
servile  imitation  or  not.  If  an  erroneous  chart  be 
made,  it  may  be  corrected,  if  it  thereby  becomes  more 
serviceable  and  useful  for  the  purposes  to  which  it  is 
to  be  applied.  But  here  you  are  told  that  there  are 
various  and  very  material  alterations.  This  chart  of 
the  plaintiffs  is  upon  a  wrong  principle,  inapplicable 
to  navigation.  The  defendant,  therefore,  has  been 
correcting  errors,  and  not  servilely  copying.  If  you 
think  so,  you  will  find  for  the  defendant;  if  you  think 
it  is  a  mere  servile  imitation,  and  printed  from  the 
other,  you  will  find  for  the  plaintiffs."  ("  Yerdict  for 
defendant."  ) 

§  138.  On  an  indictment  for  homicide,  a  brother- 
in-law  of  the  deceased  testified  to  seeing  and  examin- 
ing a  dead  body,  about  five  months  after  the  murder 
was  alleged  to  have  been  committed,  and  specified 
several  points  of  resemblance;  and  then  the  prose- 
cutor asked  his  opinion  whether  it  was  his  brother-in- 
law's  body,  alleged  to  have  been  killed:  it  was  held 
that  the  opinion  could  not  be  taken,  as  it  was  the 
province  of  the  jury  to  decide  on  the  identity,  from 
the  points  of  resemblance,  the  body  being  much  de- 
composed and  altered  in  appearance.^°  And  so  the 
identification  of  a  bowl  alleo^ed  to  have  contained 


&' 


20 


People  V.Wilson,  3  Parker  Crim.  R.  (N.  Y.)  206. 


Chap.  VIII]        IDENTITY   AND    ALTEKATI0:N".  125 

poison  administered  to  a  wife  by  her  husband,  was  for 
the  jury.-^ 

§  139.  Whether  a  deed  does  or  does  not  embrace  a 
particular  piece  of  land,  as,  for  instance,  land  includ- 
ed in  a  patent  and  land  j)urchased  at  a  register's  sale 
for  taxes,  is  held  in  Kentucky  to  be  a  question  of 
fact ;  ~-  or  where  lands  are  conveyed  by  a  general  in- 
definite description,  whether  these  embrace  land  con- 
veyed by  prior  unrecorded  deed,  is  held  in  Pennsyl- 
vania in  the  same  way.^^  And  the  court  remarked, 
"We  are  far  enough  from  wishing  to  enlarge  the 
domain  of  parol  evidence.  We  would  that  all  men 
would  express  their  agreements  in  writing;  and  when 
they  have  done  so  in  terms  that  are  intelligible, 
a  jury  is  not  to  be  permitted  to  set  up  some  other 
contract  for  them;  but  are  to  administer  that  which 
the  parties  have  written  down,  as  the  court  expounds 
it.  But  when  the  writing  itself  refers  to  a  subject 
matter,  without  defining  it,  which  is  outside  of  the 
instrument,  the  parties  must  expect  a  jury  to  be  em- 
ployed to  ascertain  it,  under  the  direction  of  a  court 
always  jealous  of  evidence  that  touches  a  written  in- 
strument." ^* 

§  140.  Where  it  is  claimed  that  goods  are  intermin- 
gled, and  by  the  fault  of  the  plaintiflp,  these  are  ques- 
tions of  fact.~^  And  whether  wood,  referred  to  by 
vouchers  from  the  auditor-general's  oflice,  and  in  an 

21  People  V.  Williams,  3  Par-  -^  Hetherington  v.  Clark,  30 
ker  Crim.  R.  (N.  Y.)  110.  Pa.  St.  396. 

22  Martin  V.  Heirs,  18  B.  Mon.          24  ibid. 

83.  25  Taylor  v.  Jones,  42  N.  H. 

32. 


126  QUESTIONS    OF    LAW   AND   FACT.  [Part  I. 

order  from  one  individual  to  another,  were  the  same 
wood.~'"' 

§  141.  The  alteration  of  instruments  by  erasure,  or 
interlineations,  is  presumed,  by  law,  to  have  taken 
place  at  the  time  of  signing;  but  if  there  is  any 
ground  of  suspicion  apj^arent  on  the  face  of  the  in- 
strument, the  time,  manner,  and  intention  of  the  alter- 
ation, are  for  the  jury  to  determine,^^  as  in  a  deed,'^ 
or  where  there  are  interlineations  in  a  marriage  con- 
tract.'^ Bat  where  the  alteration  is  of  such  a  nature 
as  to  avoid  the  instrument,  as  the  erasure  of  a  signa- 
ture, or  a  seal,  it  is  to  be  explained  before  going  to 
the  jury;  otherwise  not;  and  in  the  absence  of  extrin- 
sic and  intrinsic  evidence  as  to  when  the  alteration 
was  made,  the  law  presumes  that  it  was  before,  or  at, 
signing.^*'  There  is  some  conflict  of  authority,  how- 
ever, on  this  point,  as  is  shown  in  a  I^ew  York  case, 
on  which  the  court  remarks,  "  In  this  conflict  of  opin- 
ion, it  appears  that  the  sensible  rule,  and  the  rule 
most  in  accordance  with  the  decisions  of  our  own 
state,  is  that  the  instriTment,  with  all  the  circum- 
stances of  its  history,  its  nature,  the  appearance  of 
the  alteration,  the  possible  or  probable  motives  to  the 
alteration,  or  against  it,  and  its  efiect  upon  the  parties 
respectively,  ought  to  be  submitted  to  the  jury,  and 
that  the  court  cannot  presume,  from  the  mere  fact 
that  an  alteration  apj)ears  on  the  face  of  the  instru- 
ment (whether  under  seal  or  otherwise),  that  it  was 

26  Piper  ?;.  White,  56  Pa.  St.94.  29  Reiuhart  v.  Miller,  22  Ga. 

^  Farnsworth    v.     Sharp,     4  414. 

Sneed  (Tenn.)  57.  30  stover  v.  Ellis,  6  Ind.  154. 
^  Acker  v.  Ledyard,  8  Barb. 


Chap.  VIII.]        IDENTITY   AND   AI.TEEATIOI!f.  127 

made  after  the  signing."  ^^  But  whether  an  alteration 
is  material  is  a  question  of  law.^- 

§  142^  And  the  fact  of  alteration  in  an  indictment 
is  for  the  court ;  whether  by  eisasure,^^  or  by  addition.^^ 
And  also  the  spoliation  of  a  deposition.^^ 

§  143.  In  an  action  of  warranty,  it  was  held  that 
where  a  sale  is  not  by  sample,  but  by  denomination 
merely,  as  "  Calcutta  linseed,"  it  is  a  question  of  fact 
whether  an  adulteration  of  supj^lied  goods  is  sufficient 
to  change  their  distinctive  character.^''' 

§  144.  Under  the  Mechanics'  Lien  law,  whether  a 
particular  change  in  a  building  constitutes  an  altera- 
tion, or  addition,  is  a  question  of  fact.^'' 

§  145.  Likewise,  where  a  question  arises  whether 
the  channel  of  a  river  has  become  widened,  it  is  to  be 
decided  by  a  jmy.^^ 

31  Maybee  v.  Sniffen,  2  E.  D.  ^4  Hunter  v.  State,  29  Ind.  81. 
Smith,  10.  (See  also  Ault  v.  ^  Stith  v.  Lookabill,  68  N.  C. 
Fleming,   1  Clarke  (Iowa)  145,     227. 

Colo  V.  Hills,  44  N.  Hamp.  2-32,         ^6  Wieler  v.  Schilizzi,  33  Eng. 

Stockton  V.  Graves,  10  Ind.  294,  L.  &  E.  334. 

State  V.  Flye,  26  Me.  313.)  ^'  Updike  v.  Skillman,  8  Dutch 

32  Burnham   v.  Ayer,  35  Me.  (N.  J.)  132. 

351.  38  Commonwealth  v.  Inhab.  of 

33  Commonwealth  v.  Davis,  11     Deerfield,  6  Allen  (Mass.)  466. 
Gray,  9. 


128  QUESTIONS   OP  LAW  AND  FACT.  [Part  I. 


CHAPTEK   IX. 

Authority. 

§  146.  The  most  common  question  under  this  head 
is  that  of  the  authority  of  agents,  derived  from  princi- 
pals. And  it  is  held  that  where  there  is  no  Avritten 
appointment,  the  jury  must  determine  the  existence 
and  extent  of  the  agency  from  testimony  concerning 
his  acts  as  such,  and  the  recognition  of  those  acts  hy 
the  principal;  as,  for  example,  in  regard  to  insurance 
agency.^  The  relation  of  principal  and  agent  must 
exist  hetween  an  employer  and  those  who  build  a 
wall  for  him,  to  render  him  liable  for  injury  by  the 
blowing  down  of  the  wall;  and  whether  there  is  such 
a  relation,  in  such  case,  is  a  question  of  fact.^  How- 
ever, there  must  be  preliminary  joroof  of  agency,  l)e- 
fore  the  acts  and  admissions  of  an  agent  are  admitted 
in  evidence  to  bind  the  principal ;  and  this  prelimina- 
ry proof  is  for  the  court.^ 

Where  indorsements  were  made  on  a  promissory 
note,  in  an  unknown  handwi'iting,  the  question  of 
agency  was  held  to  be  a  question  of  fact.* 

The  scope  of  an  agent's  authority,  as  defined  in  the 
letter  of  a  principal,  is  a  question  of  fact  in  a  collat- 

^  Nicholl  V.  Insurance  Co.,  3  ^  Cliquet's     Champagne,       3 

Woodbury  &  Minot  C.  C.  583.  Wall.  115. 

2  Benedict «;.  Martin,  36  Barb.  *  Valentine  v.  Packer,  5  Ban. 

289.  (Pa.)  335. 


Chap.  IX.]  AUTHORITY.  120 

era!  action,^  as  an  authority  to  indorse  a  note,*'  or  to 
draw  checks/  or  to  act  as  deputy  in  a  pubhc  office.^ 
And  imphed  authority  is  for  the  jury,  as  well  as  that 
admitting  direct  testimony.^ 

But  the  extent  of  the  authority  of  a  bank  cashier  is 
held  a  question  of  law.^° 

Whether  an  agent  has  exceeded  his  authority  is  for 
the  jury;  as,  in  writing  a  letter,^^  or  acting  as  a  part- 
ner,^^  or  transferring  a  note.^^ 

Also,  whether  a  warehouseman,  in  receiving  goods, 
acted  as  an  agent  of  the  carrier,  or  of  a  vendee,  in  a 
case  of  stoppage  in  transitu.^* 

Wliere  a  vessel  owner  agreed  to  carry  a  carpenter 
to  California,  for  his  work  on  the  ship  in  preparing 
for  and  performing  the  voyage,  and  then,  before  ready 
for  sea,  refused  to  carry  him,  unless  he  would  pay 
f25,  and  sign  the  shipping  papers,  and  the  papers 
were  signed  and  note  given  to  the  shipping  master 
for  the  $25,  and  on  the  day  of  sailing  the  carpenter 
was  turned  out  of  the  vessel  for  the  non-payment  of 
the  $25,  whereupon  he  brought  an  action  for  the  breach 
of  contract,  it  was  held  that  the  owner  might  shoAV  a 
modification  of  the  fii*st  agreement,  and  that  it  was  a 
question   of  fact  whether  the   shipping  master  had 

^  Slonecker  v.  Garrett,  48  Pa.  ^^  Bank  v.  Hanraer,  14  Mich. 

St.  419.  212. 

^  Ilawkinson  v.  Lombard,  25  ^^  McCliing's  Ex'rs  v.  Spots- 
Ill.  574.  wood,  19  Ala.  169. 

"^  Bank  v.  Admr.  31  Ala.  227.  ^^  London    Savings    Fund  v. 

8  McDonell  v.  Bank,  20  Ala.  Hagerstown  Bank,   36    Pa.   St. 

317.  507. 

^  Savings    Fund    v.    Hagers-  ^^  Krebs  v.  O'Grady,  23  Ala. 

town   Savings  Bank,  36  Pa.  St.  732. 

601.  14  Hoover  v.  Tibbitts,  13  Wis. 

9  81. 


130  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

authority  to  take  as  cesh  the  note  of  the  passenger, 
and  so  whether  the  passenger  had  fulfilled  his  part  of 
the  modified  agreement/^ 

Wliere  the  son  of  a  co-surety  notified  the  creditor 
to  bring  an  action  against  the  principal  debtor,  his 
authority  to  give  such  notice  is  a  question  for  the 
jury.^*"'  Also  whether  one  is  the  servant  of  a  corpora- 
tion.^^ And  whether  the  acts  of  a  street  commission- 
er are  within  the  general  scope  of  his  authority.'^ 

Where  a  proprietor  of  a  sugar  refinery  became  in- 
sane, and  the  defendants,  having  an  interest  in  the 
establishment,  told  the  superintendent  to  continue  the 
works  and  employ  the  necessary  help,  and  thereupon 
the  plaintiff  was  still  retained,  it  was  held  a  question 
of  fact  as  to  the  liability  of  the  defendants,  who  were 
accordingly  held  liable.'^ 

The  question  of  ratification  seems  to  be  subject  to 
some  conflict  of  authority,  it  being  held,  in  Texas,  to 
be  one  of  law  ~*^  usually,  unless  the  evidence  is  doubt- 
ful or  susceptible  of  different  interpretations;  while, 
in  Illinois,  it  seems  to  be  held  a  question  of  fact,  in 
general,^^  and,  in  !N^ew  York,  also,  it  is  held  to  be  for 
the  jury." 

The  IS^ew  Hampshire  court  lays  down  this  general 
rule :  "  Whenever  the  justification  of  any  act,  alleged 

^^  Holmes  v.  Doane,  9  Gush-  ^^  Colgan  v.  Aymar,   Hill  & 

mg,  138.  Denio,  28. 

IS  Klingensmith  v.  Ex'rs,  31  ^o  Bank  v.  Jones,  18  Tex.  828. 

Pa.  St.  461.  21  Fisher  v.  Stevens,  16    111. 

1'  Burke  v.  R.  R.  Co.  34  N.  H.  399. 

481.  22  Thorn  v.  Bell,  Hill  &  Denio, 

18  Gilpatrick  v.  City,  61  Me.  433. 
190. 


Chap.  IX.]  AUTHORITY.  131 

to  be  wrongful  and  injurious,  is  based  on  the  exercise 
of  authority,  whether  that  authority  be  incident  to  the 
official  character  and  duty  of  the  party  exercising  it, 
or  arise  from  the  misconduct  of  the  opposite  party, 
and  the  necessities  of  the  case,  the  question  of  the 
excess  of  such  authority  is  to  be  determined  by  the 
jury,  upon  the  evidence  submitted  for  their  considera- 
tion ;  and  not  by  the  court."  ^^ 

And  also  the  question  whether  there  has  been  any 
deviation  from  the  authority  of  instructions,'*  in  the 
act  of  a  factor.^^ 

§  147.  In  regard  to  military  authority,  the  general 
rule  is  laid  down,  by  the  Missouri  court,  thus:  "When 
the  military  authority  land  orders  are  made  to  appear, 
the  existence  of  the  emergency  or  military  necessity 
shall  be  deemed  to  be  conclusively  proved  and  estab- 
lished by  the  judgment  of  the  officer,  and  shall  be 
presumed  as  matter  of  law.  It  operates  so  far  to 
change  the  rules  of  evidence.  It  makes  that  a  justi- 
fication and  defence  which  would  not  have  been  such 
before  without  further  proof.  In  this  it  is  not  unlike 
those  statutes  which  make  certain  facts  proven  to 
have  the  effect  to  raise  a  conclusive  presumption  of 
negligence,  or  liability.  The  military  necessity  only 
is  thus  conclusively  presumed ;  but  the  questions 
whether  the  military  authority  or  orders  existed,  in 
fact,  or  whether  the  acts  complained  of  were  really 
done  by  virtue  of  such  authority,  or  were  the  acts  of 
the   individual   in  his  private   capacity,  or  were  an 

23  Hilliard  v.  Gould  34  N.  H.  ^  Sigerson  v.  Pomeroy,  13 
245.  Mo.  620. 

^  Fagin  v.  Connoly,  25  Mo. 
87. 


132  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

abuse  of  power,  or  a  perversion  of  orders  for  private 
ends,  or  malicious  purposes,  would  be  still  open  for 
the  determination  of  the  jury."  ^'^  And  so  in  a  case 
where  the  defence  was,  seizure  by  order  of  the  Con- 
federate military  authority,  and  the  court  decided  the 
question,  it  was  held  error;  and  that  it  should  have 
been  submitted  to  the  jury,  whether  the  defendants 
liad  really  acted  under  military  authority  in  seizing 
the  property  or  not.'^ 

Where  one  enlisted  *men  in  a  borough,  and  after- 
wards transferred  them  to  another,  to  fill  up  a  defi- 
cient quota,  and  the  first  borough  brought  suit  to  re- 
cover back  bounties  it  had  paid  for  the  enlisted  men, 
it  was  held  that  if  the  recruiter  were  the  agent  of  the 
borough,  duly  authorized  to  enlist,  the  men  could  not 
be  thus  transferred  to  another  by  such  agent,  and  the 
bounty  money  could  be  recovered  again.  Or,  if  there 
was  a  ratification  before  the  transfer.  The  court  say, 
"  It  is  true  that  when  one  without  authority  under- 
takes to  act  for  another,  that  other  may  afterwards 
ratify  the  act,  and  thereby  avail  himself  of  its  benefits, 
assuming,  at  the  same  time,  its  attendant  burdens. 
Prior  to  such  ratification,  however,  the  agent  is  at 
liberty  to  retrace  his  steps.  He  is  not  obliged  to 
wait  an  indefinite  time,  to  see  whether  the  person  for 
whom  he  has  acted  without  authority  will  adopt  his 
act.  Clearly  is  this  so,  when,  in  acting,  he  has  made 
expenditures,  or  assumed  personal  obligations.  Such 
being  the  law,  if  the  defendants  were  not  authorized 
by  the  borough  to  enlist  men  and  have  them  placed  to 

-6  Drehman  v.  Stifel,  41  Mo.  ^7  Brakebill  v.  Leonard,  40 
208.  Ga.  62. 


Chap.  IX.]  AUTHORITY.  133 

the  credit  of  the  boroug'h,  if  they  could  not,  therefore, 
have  recovered  from  the  borough  the  money  paid  by 
them,  and  the  necessary  expenses  to  which  they  had 
been  subjected  in  procuring  the  men,  they  had  a  right 
to  protect  themselves,  and  obtain  reimbursements  of 
their  expenditures  by  causing  the  men  to  be  credited 
to  the  township  at  any  time  before  the  borough  rati- 
fied their  agency,  unless,  perhaps,  the  credit  to  the 
borough  had  been  actually  consummated.  It  having 
been,  therefore,  a  material  question  whether  the  de- 
fendants had  authority  to  engage  men  to  enter  the 
military  service,  and  be  credited  on  the  quota  of  the 
borough,  the  question  should  have  been  submitted  to 
the  jury,  to  be  answered  from  the  evidence.  It  was 
not  for  the  court  to  answer  it,  or  give  to  the  jury  in- 
structions how  it  should  be  answered.  And  we  are 
not  without  our  suspicions  that  the  court  intended  to 
submit  it  to  the  jury.  But  the  language  of  the 
learned  judge  seems  rather  to  have  withdrawn  it  from 
their  consideration."  *  ^^ 

As  to  the  authority  of  towns  to  pay  bounties  for 
enlistments,  it  is  held  that  it  is  not  included  in  their 
ordinary  powers,  although  it  will  be  held  valid  where 
bounties  are  voted  and  men  enlist  under  such  induce- 
ment. And  in  the  case  where  this  is  specially  decided, 
in  ISTew  Hampshire,  one  had  so  enlisted  for  nine 
months,   under    an   offer  of  bounty  to  nine  months' 

*  There  seems  to  be  a  singular  indefiniteness  in  the  statement 
of  the  facts  in  this  case,  which  renders  them  quite  obscure  ;  but 
this  does  not  affect  the  point  relating  to  our  subject. 


28 


Hart  V.  Borough,  56  Pa.  St.  26. 


134  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

men,  but  receiving  an  immediate  appointment  as  as- 
sistant surgeon,  he  was  enrolled,  on  the  very  day  of 
his  said  enlistment,  for  three  years,  instead  of  nine 
months;  and  the  question  arose  as  to  the  liability  of 
the  town  to  pay  him  the  nine  months'  bounty.  And 
it  was  held  a  question  of  fact  whether  his  nine 
months'  enlistment  was  genuine,  or  only  colorable; 
and  so  Avhether  the  town  was  liable  to  him  for  the 
bounty  money.  The  court  remark,  "  Whether,  in  the 
true  sense  of  the  law,  plaintiff  ever  engaged  to  serve 
for  the  term  of  nine  months,  either  as  a  private  or  an 
ojfficer,  in  such  a  manner  that  he  might  be  reckoned 
as  one  of  the  nine  months'  quota  for  the  town  of  Dan- 
bury,  becomes  a  material  inquiry  here,  and  one,  under 
all  the  evidence,  proper  to  be  submitted  to  the 
jury." 

§  148.  As  to  duress,  where  a  father  compelled  his 
children,  by  terrifying  threats,  to  the  commission  of 
burglary  and  larceny,  it  was  held  to  be  for  the  jury  to 
determine  the  character  and  force  of  the  alleged 
duress,  and  not  for  the  court;  and  also  the  capacity 
for  crime  of  the  children.^*' 

§  149.  Whether  a  sale  by  a  widow  of  property 
belonging  to  her  husband's  estate,  in  order  to  pay 
debts,  was  in  pursuance  of  authority  conferred  by  an 
agreement  with  the  executor  and  heirs,  is  a  question 
of  fact.^^ 

29  Stone  V.  Danbury,  46  N.  H.  3i  Evans  v.  Harllee,  9  Rich 
140.  (S.  C.)510. 

2^  State  V.  Leamai'd,  41  N.  H. 

588. 


Chap.  X.]  TIME.  135 


CHAPTER  X. 

Time. 

§  150.  Whether  a  bill  of  exchange  was  indorsed 
before  a  supposed  acceptance  is  for  tlie  jury.^  Also 
the  time  when  a  note  is  overdue,  when  it  depends  on 
circumstances  indicating  the  intention  and  under- 
standing of  the  parties;^  as  where  it  is  made  in 
another  state,  and  controlled  by  the  laws  thereof,  and 
is  payable  on  demand,  and  the  question  arises  whether 
it  is  overdue,  so  as  to  let  in  a  defence  against  an  in- 
dorsee, available  against  the  payee.^ 

In  Texas,  it  has  been  held  that  a  contract  for  the 
sale  of  corn,  leaving  the  time  of  delivery  indefinite, 
as,  say  two  or  three  weeks,  a  demand  cannot  be 
made  for  the  corn  by  the  purchaser,  after  the  time  has 
passed;  and,  especially  where  there  is  evidence  show- 
ing that  time  was  material  to  the  seller,  it  is  properly 
left  to  the  jury  what  the  time  of  the  contract  (it  being 
oral)  really  was."* 

§  151.  But  the  most  common  form  in  which  the 
question  of  time  arises  is  that  of  reasonable  time. 
The  general  rule  is  thus  laid  down :  "  "When  the  law 
requires  that  an  act  stipulated  to  be  done  upon  de- 

1  Weeton  v.  Hodd,  26  Eng.  ^  Barbour  v.  Fullerton,  36  Pa 
L.  &  E.  278.  St.  106. 

2  Carriage  Co.  v.  Kinsella,  31  ^  Steagall  v.  McKellar,  20 
Conn.  273.  Tex.  268. 


136  QUESTIONS   OF   LAW   ANT)   TACT.  [Part  I 

mand  shall  be  performed  within  a  reasonable  time 
thereafter,  in  determining  what  that  time  is,  the  jmy 
arc  to  ascertain  the  facts,  and  the  court  to  apply  the 
law  to  those  facts,  in  cases  where  the  facts  arc  con- 
troverted or  doubtful.  Where  the  facts  are  admitted, 
or  clearly  proved,  what  is  a  reasonable  time  is  a  ques- 
tion of  law  to  be  decided  by  the  com*t."  And  a  rea- 
sonable tune  is  defined  to  be  "so  much  time  as  is 
necessary,  under  the  circumstances,  to  do  conven- 
•ently  what  the  contract  requues  should  be  done."  ^ 

Wliat  is  a  reasonable  tune  for  a  patentee  to  make  a 
disclaimer,  who  has  included  in  his  patent  an  inven- 
tion of  which  he  is  not  the  author,  is  held  a  question 
of  law.''  As,  also,  reasonable  tune  for  one  who  has 
the  precedence  to  take  out  letters  of  administration.'' 
And  for  assignees  in  banki'uptcy  to  act  in  acceptance 
of  the  trust.^ 

But  where  there  are  modifications  in  a  contract,  by 
mutual  consent,  relating  to  the  particulars  thereof, 
this  discharges  the  limited  time  mentioned  therein, 
and  remits  the  performance  to  a  reasonable  time ;  and 
this  is  a  question  of  fact.^  And  where,  in  a  land 
contract,  the  stipulation  was  as  soon  as  a  party  could 
have  tune  to  prepare  the  papers,  and  send  or  go  to 
New  York,  or  the  north,  to  sell  the  land.'°  And  also, 
where  a  charter  party  provides  for  two  voyages  to 


5  Blackwell,    &c.   v.  Fosters,  ^  Graham    v.    Van    Diemen's 

1    Met.  (Ky.)  95,   96  (quoting  Land  Co.,  30  Eng.  L.  &  E.  578. 

Hill  V.  Hobart,  16  Me.  168).  ^  Green  v.  Haines,   1   Hilton 

*^  Seymour  v.  McCormick,  19  (N.  Y.)  255. 

How.  (U.  S.)  106.  1'^  Admr.     v.    Hardeman,    15 

"  Hughes   V    Pipkin,    Phille.  Tex.  481. 
(N.  C.)  5. 


Chap.  X.]  TIME.  .  137 

different  ports,  and  secures  to  the  owner  the  right 
hkewise  to  send  the  vessel,  after  the  first  voyage  and 
before  the  second,  to  any  other  port  in  Europe,  to 
load  for  any  port  of  the  United  States,  proceeding 
from  such  port  to  Mobile  to  commence  the  second 
voyage,  whether  an  offer  to  perform  the  second 
voyage  was  made  in  a  reasonable  tune  from  the  com- 
pletion of  the  first;  and  that,  too,  although  the  evi- 
dence is  comprised  in  written  correspondence,  show- 
ing the  dates  of  the  vessel  touching  at  the  several 
ports.  ^^ 

But  it  is  held  in  California,  that  where  there  is  an 
agreement  for  an  indefinite  enlargement  of  the  time 
of  a  contract,  and  the  evidence  of  the  agreement  is 
in  the  letters  of  the  parties,  which  show  that  the  en- 
largement was  to  extend  to  the  contract  generally,  in 
all  its  particulars,  the  determination  of  the  reasonable 
time  belongs  to  the  court,  restmg  on  the  general 
province  of  the  court  to  construe  instruments  in 
writing.^- 

In  a  case  as  to  the  responsibilities  of  guarantors, 
where  the  creditors  forbore  nine  years  to  proceed 
against  the  principal  debtor,  the  court  say,  "Every 
case  is  to  be  judged  by  its  circumstances.  Here  was 
a  debt  of  ^000,  secured  by  a  mortgage  of  real 
estate,  that  had  cost  the  mortgagor  that  sum;  he 
had  paid  the  interest,  and  f  1000  of  the  principal  of 
the  debt,  and  from  the  time  the  mortgage  fell  due 
till  he  was  sold  out,  he  was  in  insolvent  circum- 
stances.    ]^[ow,  under  these  cu^cumstances,  it  was  a 

^1  Murrell  v.  Whiting,  32  ^  Luckhart  v.  Ogden,  30  Cal. 
Ala.   67.  55V. 


13S  QUZSTIOXS    OF    LAW    A>'D    FACT.  [PamI. 

question  for  the  jurv  whether  the  delay  was  unrea- 
sonable, and  whether  the  guarantors  wtre  prejudiced 
by  it.  All  the  evidence  about  the  value  of  the  real 
estate,  at  difterent  periods,  would  bear  upon  this 
question.  TVas  it  neghgence,  or  rather  was  it  a  hick 
of  due  diligence,  to  indulge  a  debtor  so  long,  under 
such  circumstances,  the  guai-antors  acquiescing  until 
1859?  "« 

And  it  is  for  the  jury  to  say  whether  there  has 
been  an  unreasonable  and  vexatious  delay  of  pay- 
ment. ^^ 

In  regard  to  rescinding  contract  for  fraud,  it  has 
been  held,  in  Indiana,  that  "  where  there  are  no  lacts 
involved  but  the  simple  one  of  the  length  of  time 
elapsed,  it  is  a  question  of  law.  But  where  disputed 
facts,  involving  questions  of  excuse,  of  time  of  dis- 
covery of  the  fraud,  «tc..  as  in  this  case,  are  to  be 
passed  upon,  the  question,  like  that  of  due  diligence 
in  the  prosecution  of  an  assigned  promissory  note,  is 
a  mixed  one  of  law  and  fact,  and  is  for  the  jiuy. 
rHolbrook  r.  Burt,  2:2  Pick.  .54^3:  Kmgsley  c.  Wallis, 
U  Me.  57:  Kelsey  r.  Ross.  6  Blacki;  536."^^) 

In  South  Carolina,  it  has  been  held  that,  tmder  a 
written  contract  for  the  pm*chase  of  land,  at  a  fixed 
price,  wherein  no  time  of  payment  was  prescribed, 
and  where  the  ptu"chaser  entered  and  occupied  for  a 
year  or  two,  and  the  vendor  gave  notice  to  quit,  be- 
cause of  the  non-payment  of  the  pm-chase  money,  the 
question  of  time  was  for  the  jmy.-"^ 

--  Ejieoutrix  r.  Hatz's  Exec-  ^  GatliDg   v.   Newell,  9  Ind. 

utors.  52  Pa,  St,  530.  5TT. 

"  Davis   V.    Kenaga,   51  111.  -'-  Eivs    f.    Havs,    10    Rich, 

170.  421. 


Chap.  X.]  TIMZ.  139 

And  so  where  an  accepted  order  was  to  be  paid 
*'-  when  certain  wharf  logs  were  sold  ^'  ?jy  the  acceptor, 
and  a  suit  was  brought  on  the  order  three  years  after- 
wards, and  the  defendant  was  allowed  to  show  his 
LnabLliLy  to  make  the  sale,  although  he  had  used  all 
ordhiary  dihgence  to  do  so,  the  question  of  unreason- 
able delay  was  held  a  question  of  fact.^"  And  so, 
where  a  sale  is  made,  but  the  time  of  dehTery  Ls  not 
specified.-'  And  where  the  dehvery  was  to  be  "^ on  or 
about  the  fii'st  of  Xovember  next."  " 

TVhere  a  sight  draft,  drawn  at  Cincinnati,  on  May  2, 
1S61.  on  persons  in  Chicago,  was  received  at  Detroit 
on  the  4th.  but  not  foi-warded  for  presentment  until 
the  2oth  (there  be:;\_  1  ally  mail  from  Detroit  and 
C         _    .  ::_   :  an  fbnrteen  hom-s  on 

the  pu-.-agcj.  and  wliCLc  :._--.-.-  v;::.=  zio  excuse  for  the 
delay,  it  was  held  error  to  leav-  i:  m-  :?.e  jury  "whether 
the  di'uft  was  presented  in  reasonable  time,  there 
being  no  evidence  bearing  on  the  poiut."'* 

Whether  an  indorsee,  however,  has  presented  a  bill 
of  exchange  for  payment  in  a  reasonable  time  after 
indorsement,  is  a  question  of  fact.--  And  whether 
the  bill  of  a  broken  bank  has  been  returned  in  a  rea- 
sonable time  after  it  was  received;-  or  a  counterfeit 
bill.-'^ 

^"  Wilder  v.  Spragae,  50  Me,  ^  Birk  v.  Ezell,  10  Humph. 

355.  ( Tei.::     Z^.z. 

-^  He:.kle    v.    Smiih,   21    111.  '    -  X:.::..    : .  Connack,  13  HI. 

241.  290. 

-    K ipp   V.  V.  lies,  3  Sandford  --  E3.i.k    v.    Baldenwick,    45 

(y.  T.)  5ST.  ni.  oTo. 
-'   Ir.?':ra::ce    Co.  r.  Alien,  11 

M::i,  ::o. 


140  QUESTIONS   OP   LAW  AND   FACT.  [Part  I. 

It  is  held  that  where  a  consignee,  under  instruc- 
tions, deviates  therefrom  in  a  sale,  and  informs  the 
consignor,  the  latter  need  not  answer  immediately  to 
disaffirm  the  sale,  but  must  do  so  in  a  reasonable 
time,  or  he  will  be  regarded  as  ratifying  it;  and  a 
reasonable  time  depends  on  the  circumstances  of  the 
case,  and  is,  therefore,  a  question  of  fact.~*  And  so 
where  a  voidable  deed  of  an  infant  is  not  disaffirmed 
for  some  time  after  coming  of  age.^^ 
'  And  whether  an  award  is  made  in  reasonable  time, 
is  for  the  jury.^*'  And  the  sale  of  property  seized 
under  execution,  where  the  statute  does  not  prescribe 
the  time.'^^  Or  a  prisoner  tried  in  reasonable  time 
after  arrest."'^ 

In  a  matter  of  legal  provocation,  what  is  time  '^  to 
cool "  from  the  heat  of  frenzied  passion,  between  the 
provocation  and  the  inflicting  of  a  mortal  blow  in 
return,  is  held  to  be  a  question  of  law.^® 

It  is  held  to  be  for  the  jury  to  determine  whether  a 
lumber  pile,  within  the  limits  of  a  highway,  but  out- 
side of  the  travelled  track,  is  an  obstruction  within 
the  meaning  of  the  statute,  by  reason  of  being  left 
there  an  unreasonable  time.^*^ 

In  an  English  case,  where  plaintiff  was  driving 
cattle  along  a  highway  at  night,  and  a  number  of 
them  entered  a  field  tlu'ough  a  gap  in  the  fence,  and 

2*  Porter  v.  Patterson,  15  Pa.  ^  Cochran  v.  Toher,  14  Minn. 
St.  232.  389. 

^  Scott  V.  Buchanan,  11  -^  State  v.  Lizemore,  7  Jones 
Humph.  (Tenn.)474.  L.  (N.  C.)  208. 

^  Haywood  v.  Harmon,  11  ^^  Chamberlain  v.  Enfield,  43 
111.  480.  N.  H.  360,  and  cases  cited. 

^"  Woodnut   V.   Knowles,  14 
Ohio  St.  27. 


Chap.  XI.]  LOCATION".  141 

the  remainder  were  di^iven  on,  and  put  np  for  the 
night,  and,  in  about  an  hour,  plaintiif  returned  for  the 
straying  animals,  and  defendant  had  impounded  them, 
it  was  held  a  misdirection  to  tell  the  jury  that  they 
were  not  taken  out  in  a  reasonable  time;  as  this 
should  have  been  left  for  the  jury  to  determine.^^ 


CHAPTER  XI. 

Location. 

§  152.  The  general  rule  in  regard  to  boundaries  is 
thus  laid  down  by  the  Supreme  Court  of  Maine: 
"What  are  the  boundaries  of  land  conveyed  by  a 
deed,  is  a  question  of  law.  Where  the  boundaries 
are,  is  a  question  of  fact.  An  existing  line  of  an  ad- 
joining tract  may  as  well  be  a  monument  as  any 
other  object  [i.  e.,  where  there  is  no  government 
survey].  And  the  identity  of  a  monument  found 
upon  the  ground  with  one  referred  to  in  the  deed,  is 
always  a  question  for  the  jury.  These  propositions 
have  been  so  often  applied  in  real  actions,  that  no 
citation  of  authorities  is  necessary  to  sustain  them. 
And  upon  this  question  of  identity  [of  lands] ,  parol 
evidence  is  always  admissible."  ^ 

Where  there  is  a  contract  for  the  sale  of  land  im- 
perfectly described  therein,  the  written   contract  is 

31  Goodwyn    v.    Cheveley,    4         ^  Abbott  v.  Abbott,  51    Me. 
Hurl.    &    Nor.   640    (Bramwell     581. 
dissentiente). 


142  QUESTIOI^^S   OF   LAW   AND   TACT.  [Part  I. 

valid,  if  the  land  is  sufficiently  described  to  enable  a 
surveyor  to  locate  it;  and  it  is  a  question  for  the  jury, 
luiless  it  is  evident  from  the  instrument  that  it  cannot 
be  located ;  in  which  case  it  is  void.^  And  where,  on 
a  plat,  a  lot  is  described  only  as  lot  'No.  115,  and  not 
otherwise  described  in  the  deed,  its  identification  is 
for  the  jury.^ 

Wbat  is  an  "  outlot,"  under  Spanish  claims,  is  held 
to  be  a  question  of  law;*  as  also  the  existence  of  facts 
to  constitute  an  outlot  of  the  kind,  is  a  question  of 
fact.'  But  there  seems  to  be  a  conffict  of  authority 
here,  since  the  United  States  Supreme  Court  have 
decided  that  whether  a  lot,  and  the  occupation,  culti- 
vation, or.  possession  thereof,  came  within  the  purview 
of  the  act  of  1812  relating  to  these  outlots,  was  for 
the  jury.*'  This  undoubtedly  is  governed  by  the  gen- 
eral rule,  namely,  where  the  calls  of  a  survey  are  all 
ascertained,  and  there  is  no  need  of  resorting  to  ex- 
trinsic evidence,  it  is  a  question  of  law.  But  when 
parol  evidence  must  be  resorted  to,  in  order  to  iden- 
tify tlie  calls,  the  facts  are  to  be  found  by  the  jury.^ 
And  where  a  question  arises  as  to  which  of  two  roads 
is  meant,  it  is  a  question  of  fact.^  And  so  where 
land  was  described  in  different  deeds  as  being  bounded 
"  on  the  mountain,"  and  "  by  the  mountain,"  and  "  the 
foot  of  the  mountain,"  it  was  held  that,  in  the  partic- 
ular case,  the  words  were  too  indefinite  and  uncertain 

2  White  V.  Hermann,  51  111.  ^  Vasquez  v.  Ewing,  40  Mo. 
245.  256. 

3  Bryan  v.  Fawcett,  65  N.  0.  ^  Savignac  v.  Garrison,  18 
654.  How.  136. 

4  Fine    v.    St.    Louis     Pub.         7  ott  v.  Soulard,  9  Mo.  604. 
Schools,  39  Mo.  67.  «  jbid. 


Chap.  XI.]  LOCATIOI^.  143 

to  control  the  courses,  distances,  and  other  references 
in  the  deeds  descriptive  of  the  land.  Held,  also,  that 
it  was  a  question  depending  both  on  law  and  fact, 
whether  these  words  excluded  or  included  a  certain 
part  of  the  mountain,  and  that  the  jury  should  deter- 
mine the  matter  under  the  instruction  of  the  court. 
Held,  also,  that  it  might  be  important  to  this  end  to 
determine  the  location  of  adjoining  tracts.^ 

And  so,  where  parties  who  had  purchased  timber 
growing  made  division,  not  by  survey,  but  by  a  rude 
draft,  without  courses  and  distances,  agreeing  upon 
the  dividing  line  as  "  a  brow  or  ridge  of  land,"  mark- 
ing this  on  the  plat  with  a  j)encil,  and  marking  the 
sections  by  the  names,  or  initials,  respectively,  and 
the  vendees  of  one  of  the  purchasers  cut  timber  on 
his  side  of  the  ridge,  but  on  a  part  marked  to  one  of 
the  others  on  the  draft,  for  which  he  was  sued  in 
trespass,  it  was  submitted  to  the  jury,  on  trial,  where 
the  location  of  the  ridge  was,  and  it  was  held,  on 
error,  that  the  submission  was  right,  since  the  true 
location  of  a  disputed  boundary  line  is  always  a 
question  of  fact.'" 

And  where  the  line  called  for  was  an  old  line 
"  from  A  down  the  bottom  with  Hill's  line  to  a  forked 
white  oak,"  it  was  held  a  question  of  fact  which  of 
two  bottoms  was  meant.''  And  so  where  a  will  pre- 
scribes a  line  "to  a  post  or  corner,"  &c.,  and  there 
are  two  such  posts.'^    And  where,  on  the  closing  line 

^  Williston  V.  Morse,  10  Met.  ^^  Hill  v.  Mason,  Y  Jones,  N. 

(Mass.)  26.  C.  552. 

i*^  Bruv^u   V    Willey,  42  Pa.  ^^  Brownfield  v.   Brownfield, 

St.  208.  12  Pa.  St.  144. 


144  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

of  a  survey,  there  were  no  indications  of  a  corner  at 
the  natural  point  of  intersection,  but  there  was  an 
apparent  marked  corner  which  could  be  reached  only 
by  a  deflection  of  forty-five  degrees,  it  was  held  to  be 
properly  left  to  a  jury  to  say  whether  the  marked 
corner  was  an  original  corner;  and,  if  so,  whether 
the  partial  line  had  not  been  abandoned,  and  another 
one  adopted  by  the  surveyor,  by  which  the  first  sur- 
vey had  been  closed  by  a  straight  line  running  from 
the  admitted  to  the  marked  corner.^^ 

"Where  the  boundary  of  a  county  line  is,  has  been 
held  a  question  of  law,  as,  for  example,  when  the 
Juniata  River  is  specified ;  '"^  but  it  is  for  the  jury  to 
find  the  facts  in  an  action  of  ejectment  that  give  it  a 
practical  application  in  matter  of  private  right;''' 
Wliere  the  description  of  a  lease  was,  a  "  coal  bank 
and  the  appurtenances  thereunto  belonging,"  and  an 
action  was  brought  for  rent,  and  eviction  set  up  as 
a  defence,  it  was  held  to  be  for  the  jury,  and  not 
for  the  court,  to  determine  the  extent  of  the  demise, 
since  it  was  not  so  much  an  instrument  to  be  con- 
strued as  a  latent  ambiguity  to  be  explained.'^ 

And  although  it  is  usually  for  the  court  to  decide, 
from  the  levy,  how  much  land  passes  at  a  sherifi^'s 
sale,  yet  where  the  generality  of  terms  in  the  return, 
or  the  uncertainty  of  the  description,  raises  a  doubt 
as  to  the  extent  of  levy,  or  the  position  of  the  land 
sold,  evidence  aliunde  may  be  brought  in  for  the  jmy 

13  Hunt  V.  McFarland,  38  Pa.  ^^  Hecker  v.  Sterling,  36  Pa. 
St.  TO.  St.  428. 

14  Johns  V.  Davidson,  16  Pa.  ^^  Yi\gj  v.  Moyers,  43  Pa  St. 
St.  521.  411. 


CnAP.  XL]  LOCATION.  145 

to  decide  the  question.^"  But  where  the  written  de- 
scription aiFords  no  means  of  fixing  boundaries,  the 
instrument  is  void  for  the  uncertainty/^  And,  on  the 
other  hand,  where  there  is  no  conflict  of  evidence, 
and  no  doubt,  there  is  nothing  for  the  jury,  as  the 
questions  of  law  are  for  the  court.^^ 

When  land  was  described  in  a  will  as  the  Red 
House  Tract,  what  that  tract  was,  in  its  limits,  was 
held  to  be  a  question  of  fact.^°  And  so,  where  the 
description  in  the  declaration  was  "  extending  south- 
wardly along  the  said  low  water  mark  to  the  mouth 
of  Cohoeksink  Creek,  as  it  was  before  diverted  from, 
and  thrown  to  the  northward  of,  its  original  course, 
by  the  erection  of  wharves  on  the  south  side  one 
hundred  and  fifty-nine  feet,  more  or  less,"  it  was  left 
to  the  jury  to  say  whether  there  had  been  an  en- 
croachment by  the  creek  upon  the  land,  in  conse- 
quence of  the  erection  of  the  wharf.-^ 

TSHiere  a  sheriff's  advertisement  described  land 
merely  as  "  the  farm  on  which  A  B  now  lives,"  and 
then,  in  his  deed  made  in  pursuance  of  the  sale,  in- 
cluded by  description  a  tract  formerly  belonging  to 
the  said  farm,  but  which,  at  the  time  of  advertising, 
had  been  sold,  and  was  in  possession  of  the  grantee, 
it  was  held  to  be  for  the  jury  to  determine  whether 
the  tract  was  included  in  the  advertisement,  and  a 

^■^  Hoffman  v.  Banner,  14  Pa.  ^0  Baynard     v.     Eddings,     2 

St.  2Y.  Strobh.  S.  C.  377. 

^^  Archibald  v.  Davis,  1  Cal.  ^i  Naglee  v.  Ingersoll,  1  Barr 

325.  (Pa.)  189. 

^^  Kamage    v.   Peterman,    25 
Pa.  St.  349. 

10 


146  QUESTIONS    OF    LAW   AND    FACT.  [Part  I. 

charge  from  the  court  directing  a  verdict  in  favor  of 
the  sheriif's  grantee  was  held  erroneous.^' 

Wliether  a  fence  is  located  on  one  side  or  the  other 
of  the  true  division  line,  is  fact  for  the  jurj.~^  And 
whether  a  particular  lot  in  San  Francisco  was  in- 
cluded in  the  original  Mexican  grant,  as  also  the 
question  of  the  boundaries  of  the  grant.^* 

Whether  a  particular  "stake"  is  the  monument 
referred  to  in  a  deed,  is  also  a  question  of  fact.^'  And 
so,  whether  a  marked  corner,  made  at  the  time  the 
deed  was  executed,  but  not  specially  named,  was 
intended  to  be  adopted  in  the  deed,  or  it  was  intended 
by  the  grantor  that  distance  and  course  should  pre- 
vail.-'' And  whether  course  and  distance  are  aban- 
doned, where  the  evidence  as  to  the  identity  of  a  line 
of  another  tract  called  for  in  a  deed  is  unsatisfactory, 
and  to  reach  it  requires  a  great  deviation."^  And 
whether  the  courses  and  distances  will  carry  the  lines 
to  certain  points  claimed  by  a  party  in  the  cause 
penduig,  where  there  are  no  fixed  monuments,  or  cor- 
ners, mentioned  in  the  deed.^^  It  is  also  for  the  jury 
to  determine  the  relative  situation  of  the  lands  of  the 
plaintiff  and  of  the  defendant,  and  the  natural  drain- 
age of  the  soil,  in  an  action  for  damages  in  cutting  a 
ditch,  and  constructing  a  levee.'"  And,  in  Texas,  it 
was  held  properly  left  to  a  jury  whether  land  lay  in 

^  Todd  V.  Philhower,  4  Zabr.  ^6  Saffret  v.  Hartman,  5  Jones 

(N.  J.)  797.  L.  (N.  C.)  188. 

22  Glowers     v.     Sawyers,     1  -''  Rodman     v.     Gaylord,     7 

Head.  (Tenn.)  157.  Jones  L.  (N.  C.)  264. 

24  Ferris  v.  Cosver,  10  Gal.  ^8  Opdyke  v.  Stephens,  4 
622,  and  cases  cited,  625,  &c.  Dutch  (N.  J.)  85. 

25  Robison  v.  White,  42  Me.  ^9  Williams  v.  Bridge,  14  La. 
216.  An.  721. 


Chap.  XI.]  LOCATION".  147 

the  empresa  of  Martin  De  Leon,  and  this  decision 
was  confirmed  by  the  United  States  Supreme  Conrt.^" 
And  it  is  for  the  jury  to  decide,  in  the  case  of  lands 
not  laid  out  by  government  survey,  v/hether  any,  and 
Avhat,  variation  may  be  allowed  in  '  the  location  of 
lands.^^  And  whether  a  state  warrant  has  been 
shifted,  or  laid  on  the  land  it  calls  for,  is  a  matter  of 
fact.^- 

Wliether  a  settler  on  public  land  has  followed  up 
his  settlement  with  improvements,  so  as  to  confirm 
his  title  against  a  subsequent  possessor,  is  likewise 
for  the  jury.^' 

Where  the  location  of  a  way  is,  also.^^  And 
whether  there  is  such  a  place  as  is  designated,  where 
it  is  situated,  and  what  are  its  limits,  when  the  place 
is  not  a  public  corporation.^^  And  where,  in  a  state, 
an  offence  was  committed,  when  it  was  committed  on 
board  of  a  vessel  in  harbor,  near  the  shores  of  dif- 
ferent states,  or  whether  it  was  committed  beyond  the 
jurisdiction  of  a  state.^*'  And  where  it  was  alleged, 
in  an  indictment,  that  a  barn  was  set  fire  to,  "  said 
barn  then  and  there  being  in  the  curtilage  [that  is, 
court  yard]  of  the  dwelling-house,"  &c.,  on  the  trial, 
it  appeared  that  the  barn  referred  to  was  on  the  cor- 
ner of  a  certain  lot;  whereupon  the  defendant  main- 
tained that  the  barn  was  not  in  the  curtilage  of  the 

30  White  V.  Burnley,  20  How.  ^4  Pettingill  v.  Porter,  8  Al- 
247.  len,  6. 

31  Wilson  V.  Inloes,  6  Gill.  35  Blanding  v.  Sargent,  33  N. 
(Md.)  163.  H.  245. 

22  Cassidy  v.  Conway,  25  Pa.  36  United  States  v.  Jackalow, 
St.  244.  1  Black.  487. 

33  Staininger   v.  Andrews,  4 
Nev.  G7. 


148  QUESTIONS    or   law   ANT>   fact.  [Part  I. 

dwelling-house,  as  alleged  in  the  indictment;  and  con- 
tended that  this  was  a  question  for  the  court,  and  not 
for  the  jury.  IS'otwith standing,  the  judge  decided  that 
it  was  matter  for  the  jury,  and  verdict  was  against 
the  defendant.     Held  correct.^'' 

Whether  an  addition  to  the  city  of  Baltimore  was 
made  according  to  the  location  on  the  plat,  and  was 
in  pursuance  of  the  act  of  1745,  has  been  held  a  ques- 
tion of  fact."'® 


CHAPTEK  Xn. 
Title. 

§  153.  Whether  one  is  a  "  mill-owner  within  the 
meaning  of  the  law  relating  to  mills  and  mill-dams," 
is  for  the  court  to  determine,  in  an  action  of  trespass 
for  flowing  lands.^ 

§  154.  On  the  general  rule,  the  construction  of 
deeds,  and  their  legal  eifect,  are  strictly  within  the 
province  of  the  court;  and  evidence  of  the  acts  and 
declarations  of  a  grantor,  not  amounting  to  a  definite 
location  of  the  land  conveyed,  cannot  be  admitted  to 
show,  contrary  to  the  terms  of  the  deed,  Avhat  land 
was  intended  to  be  included.^  The  proof  of  execution 
is  addressed  to  the  court;  ^  and  in  ejectment  the  court 
must   determine   as   to   the  proper  parties,  and  the 

^7  Commonwealth   v.  Barney,         ^  Large  v.  Ovis,  20  Wis.  699. 

10  Gush.  482.  2  pean  v.  Erskine,  18  N.  H.  83, 

38  Lessee  v.  Inloes,  4  Md,  187.         ^  gtark  v.  Barrett,  15  Gal.  372 


Chap.  XII. ]  TITLE.  149 

validity  and  effect  of  a  grant  from  which  title  is  de- 
raigned;  as  to  its  contents,  when  lost,  and  the  valid- 
ity and  effect  of  mesne  conveyances  under  it,  and  as 
to  the  validity  of  orders  in  the  probate  court  resulting 
in  deeds.*  Also,  whether  a  mortgage  has  been  prop- 
erly executed  and  acknowledged ;  ^  and  what  the 
boundaries  are,  in  the  call  of  a  deed,  although  it  is 
for  the  jury  to  say  where  they  are;  ^  and  the  reforma- 
tion of  a  mistake  in  a  deed ;  ^  and  who  holds  the  title 
to  real  estate,  from  the  deeds  introduced  in  evidence ;  ^ 
and  the  legal  effect  of  a  deed  in  which  there  is  an 
evident  material  alteration.^ 

Where  a  debtor  gives  a  mortgage  of  personal  prop- 
erty, reserving  therein  the  power  of  disposing  of  the 
property,  it  is  void  as  against  creditors ;  and  it  is  for 
the  court  to  decide  whether  such  power  is  reserved 
by  the  terms.^°  And  so,  where  a  debtor  mortgaged 
the  contents  of  his  store  and  dwelling-house,  "and 
also  such  personal  property  as  should  hereafter  be  in 
the  said  premises,  or  which  might  be  substituted  in 
place  of  such  articles  as  might  be  sold  in  the  course 
of  his  business,"  it  was  held  void,  as  creating  a  trust 
for  the  use  of  the  mortgagor;  and,  further,  that  its 
validity  was  exclusively  a  question  of  law." 

§  155.  On  the  other  hand,  parol  evidence  is  admis- 
sible to  remove  a  latent  ambiguity  in  a  deed  or  will; 

^  Seaward  v.  Malotte,  15  Cal.  ^  State  v.  Delong,  12  Iowa, 

304.  455. 

5  Bullock  V.  Narrott,  49  111.  65.  ^  Montag  v.  Linn,  23  111.  556. 

6  Whittelsey  v.  Kellogg,  28  lo  Freeman  v.  Eawson,  5  Ohio 
Mo.  407.  St.  1. 

"'  Gray  v.  Hornbeck,  31  Mo.  ^^  Spies  v.  Boyd,  1  E.D.Smith 

401.  (N.  Y.)  445. 


150  QUESTIONS    OF    LAW   AXD   FACT.  [Part  I 

and  it  is  held  that  where  such  evidence  is  given,  the 
entire  evidence,  inchisive  of  the  instrument,  goes  to 
the  jury;'-  as,  for  instance,  where  the  description  is 
indefinite  and  doubtful,  being  susceptible  of  more  than 
one  application; '''  or  where  there  is  a  partially  blank 
description,  as  "  white  —  "  in  reference  to  a  corner, 
and  there  is  a  white  oak  in  the  course  of  a  marked 
line,  and  other  circumstances  tending  to  explain  that 
this  white  oak  is  the  corner  intended ;  '^  although  in- 
ferences from  words  actually  expressed  belong,  of 
com'se,  to  the  court. '^ 

Whether  a  particular  use  of  water  for  saw-mill  pur- 
poses interferes  with  the  gi'ist-mill  privileges  of  an- 
other using  the  same  stream,  is  a  question  of  fact.^'' 
Also,  the  identity  and  the  possession  of  land ;  '^  and 
the  fact  of  sale,  and  extent  of  purchase,  and  payment 
of  the  price,  and  delivery  of  possession,  under  a  con- 
tract of  sale  forty  years  old ;  '^  and  whether  there  was 
such  possession  of  prior  grantees  as  to  give  a  pur- 
chaser notice  of  unrecorded  deeds ;  '^  and  whether 
cu'cumstances,  concurring  with  long  peaceable  posses- 
sion, prove  a  presumed  existence  of  a  lost  deed ;  ~°  or 
presumption  of  title  from  possession  alone.  (See  4 
McLean  U.  S.  549.) 

^2  Symmes  v.  Brown,  13  Ind.  ^"  Hicks  v.  Davis,  4  Cal.  67. 

319.  18  Richards  v.  Elwcll,  48  Pa 

13  Bell  V.  Woodward,  46  N.     St.  362. 

H.  329,  1^  Bryan's  Lessee  v.  Ilawey, 

14  Dobson  V.  Finley,  8  Jones     18  Md.  127. 

(N.  C.)  495.  20  Townsend  v.  Adm'r,  .S2  Vt. 

15  Wheeler  v.  Schroeder,  4  190 ;  Taylor  v.  Watkiiif?,  26 
R.  I.  392.  Tex.  690. 

1*"  Doug-lass    V.    Whittemore, 
32  Vt.  690. 


Chap.  XII.]  TITLE.  151 

Where  a  father  purchased  land,  and  took  the  deed 
in  the  name  of  his  son,  who  bore  the  same  name,  with 
the  addition  of  "jr.,"  and  Uved  in  the  same  town;  and, 
in  taking  the  deed,  he  said  nothing  about  acting  as 
the  agent  of  his  son,  so  that  the  seller  supposed  the 
father  was  the  grantee  himself,  to  whom  he  was  deed- 
ing the  land;  and  some  evidence  tended  to  show  that 
the  son  had  furnished  the  money,  and  authorized  the 
father  to  buy  in  his  name,  it  was  held  for  the  jury  to 
determine  which  was  the  grantee  in  the  deed,  or  who 
was  the  real  purchaser .^^ 

An  excessive  levy,  and  inadequacy  of  price  on  a 
sheriff's  sale,  is  a  question  of  fact.^-  Also  the  genu- 
ineness of  a  deed,  where,  on  trial,  the  defendant  in- 
troduced a  copy  in  evidence  bearing  date  the  same 
day  with  one  the  plaintiff  had  introduced,  which  was 
defective,  but  substantially  the  same  with  that  of  the 
defendant,  and  the  plaintiff  claimed  the  latter  to  be  a 
forgery .^^  And,  in  general,  whether  a  conveyance  is 
to  be  presumed  from  circumstances  claimed  to  be 
sufficient."* 

Whether  a  deed  was  actually  executed  and  deliv- 
ered at  the  time  of  its  date,  is  for  the  jury.~^  And  it 
has  even  been  held,  in  Maryland,  that  the  fact  that  all 
the  evidence  was  offered  on  one  side  to  prove  delivery 
on  the  day  of  date,  did  not  authorize  the  court  to 
withdraw  the  question  from  the  jury;  or  assume  that 
the  jury  could  not  find  it  to  have  been  delivered  on 

21  Prentiss  v.   Blake,   34  Vt.          ^  Blake  v.  Davis,  20  Ohio  St. 

460.  241,  and  many  cases  cited. 

^  Baker  v.  Clepper,  26  Tex.          ^  Genter     v.     Morrison,     31 

634.  Barb.  157. 

23  Pratt  V.  Battles,  34  Vt.  396. 


152  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

another  day.^*^  No  particular  form  of  delivery  is  re- 
quired; and  when  any  cu-cmiistances  are  proved,  no 
matter  how  slight  or  inconclusive,  from  which  a  de- 
liveiy  may  be  inferred,  the  court  has  no  right  to  in- 
struct the  jury  that  there  is  no  evidence  of  a  delivery, 
but  must  submit  the  matter  to  them  to  weigh  the 
evidence.'^'  But  whether  a  deed  which  has  been  deliv- 
ered, shall  take  eifect  absolutely  or  conditionally,  the 
condition  not  being  expressed  therein,  cannot  be 
shown  by  parol  evidence.^^ 

Wliat  amounts  to  a  final  delivery  and  acceptance  is 
a  question  of  law;  but  whether  the  facts  exist  which 
constitute  delivery,  is  a  question  of  fact;  so  that  the 
whole  is  a  mixed  question  of  law  and  fact  to  be  left 
to  the  jury,  under  the  instruction  of  the  court.^^ 

Where  a  deed  of  bargain  and  sale  was  executed 
and  acknowledged,  and  on  the  same  day  recorded, 
whether  the  grantee  knew  of  it,  and  gave  his  assent, 
is  for  the  jury.'^^ 

An  instruction  was  held  error  which  thus  charged, 
"  If  the  jury  believe,  from  the  evidence,  that  B.  should 
remain  in  the  possession  of  the  property  until  P.  took 
possession  of  it  on  the  failure  of  the  first  note,"  &;c., 
in  that  it  referred  one  feature  of  the  mortgage  to  the 
jury  for  construction,  whereas  it  is  the  province  of 
the  court  to  construe  the  instrument,  not  only  in  its 
entirety,  but  in  every  clause.'^^     Yet  a  new  trial  will 

^'^  Barry   v.  Hoffman,   6   Md.  ^^  Adm'rs  v.  Earl,  1  Spencer 

86.  (N.  J.)  363. 

2' Floyd  V.  Taylor,   12  Ired.         so  genslev  v.  Atwill,  12  Cal.- 

(N.  C.)  47.  236. 

28  Lawton  v.  Sager,  11  Barb.         ^^  Price  v.  Mazange,  31  Ala, 

351  709. 


Chap.  XII. ]  TITLE.  153 

not  be  granted  if  the  construction  of  an  instrument  is 
improperly  left  to  a  jury,  and  they  decide  correctly 
upon  it."- 

§  156.  As  to  the  interpretation  of  surveys,  the 
Supreme  Court  of  Ohio  lays  down  this  general  rule : 
"Where  an  original  survey  has  been  made  by  the 
true  meridian,  and  contracts  are  made  and  deeds 
executed  for  parts  of  such  surveys,  calling  for,  and 
adopting  the  calls  of  parts  of  the  original  lines  of  the 
survey  in  the  description,  it  is  clear  that  such  calls 
of  the  original  courses  mean  the  true  meridian;  and 
if  the  contracts  or  deeds  thus  made  call  for  courses 
originally  surveyed  by  the  magnetic  meridian,  it  is 
equally  clear  that  such  calls  mean  the  magnetic  me- 
ridian. In  the  subdivision  lines,  and  in  contracts  of 
sale  and  deeds  for  parts  of  sections  originally  sur- 
veyed by  the  true  meridian,  subdivision  lines  having 
no  reference  to  the  original  lines  would,  in  general, 
be  surveyed  by  the  magnetic  meridian,  as  such  is  the 
usual  mode  of  surveying  lands  in  all  parts  of  the 
state.  It  is  manifest  from  all  this  that,  in  respect  to 
surveys  in  this  state,  ^west,'  or  -due  west,'  in  one 
class  of  original  surveys,  means  a  line  at  a  right  angle 
to  the  true  meridian,  and  in  another  class,  ^  west,'  or 
'  due  west,'  is  west  according  to  the  bearings  of  the 
surveyor's  compass  at  the  time  of  the  original  survey. 
In  giving,  then,  an  interpretation  to  these  words,  a 
fixed,  determinate,  judicial  construction  cannot  be 
adopted,  and  their  meaning  must  frequently  depend 
upon,  and  be  controlled  by,  extraneous  facts. 

32  Morse  v.  Weymouth,  28  Vt.  (2  Wms.)  829. 


154  QUESTIONS   OF   LAW   AXD   FACT.  [rvRT  I. 

"In  the  case  before  us,  the  fact  that  the  original 
section  was  owned  in  common,  that  the  calls  of  the 
courses  of  the  original  survey  were  for  the  true  or 
the  magnetic  meridian,  that  the  original  purchasers 
from  the  government,  or  their  representatives,  in 
using  the  words  ^  due  west,'  were,  or  were  not,  domg 
so  with  a  view  of  a  subdivision  of  the  section  between 
them  and  with  reference  to  the  original  courses,  were 
proper  subjects  of  inquiry  and  consideration  for  the 
jury,  under  the  direction  of  the  court,  to  determine 
the  disputed  line."  ^^ 

§  157.  The  proceedings  of  an  administrator  in  the 
sale  of  real  estate,  it  seems,  should  be  left  to  the  jury, 
as  to  the  presumption  of  their  correctness,  after  a 
long  time  has  elapsed,  with  possession  of  the  land  by 
the  purchaser  at  the  sale.^* 

§  158.  The  disaffirmance  of  the  deed  of  a  minor  by 
deeding  the  land  to  a  third  person,  is  a  question  of 
law."^^  Also,  whether  a  deed  is  void  on  the  face  of  it, 
as  to  creditors.^*^  And  an  issue  as  to  reforming  a  con- 
tract for  the  sale  of  land."''' 

§  159.  Whether  land  was  purchased  by  one  as 
trustee,  has  been  held  to  be  for  the  jury ;  as  v>^here  a 
judgment  creditor  levied  on  lands,  and  then  made  an 
assignment  to  another  for  the  use  of  creditors,  with  a 
resulting  trust  to  himself,  then  marked  the  judgment 
to  the  use  of  the  assignee,  who  afterwards  bid  in  the 
land,  but  failed  to  have  the  deed  fully  executed  for 

33  McKinney  v.  McKinney,  8  ^^  Peterson  v.  Laik,  24  Mo. 
Ohio  St.  426.  644. 

^  Doolittle  V.  Helton,  26  Vt.  ^6  gank  v.  Inlocs,  T  Md.  393. 
589.  3'  Olendorf  I'.  Cook.l  Lansing 

(N.Y  )  42. 


Chap.  XII.]  TITLE.  155 

seventc^en  years,  all  of  which  time,  excepting  the  first 
year,  the  judgment  creditor  had  occupied  the  land,  by 
himself  and  tenants;  when  it  was  sold  on  a  judgment 
against  the  former  judgment  creditor  to  the  plaintiff, 
the  former  purchaser  giving  no  notice  of  title ;  it  was 
held  that  the  jury  were  to  determine  whether  the 
former  purchase  was  in  the  character  of  a  trustee.^^ 
And,  in  general,  a  trust  by  implication.^^ 

§  160.  Whether  there  has  been  a  breach  of  the 
covenant  of  seisin  is  a  question  of  law;  although,  in 
such  case,  the  estimation  of  damages  belongs  to  the 

•  40 

jury.^" 

§  161.  Under  the  conveyance  act  of  Illinois,  requir- 
ing color  of  title  obtained  in  good  faith,  it  is  held  that 
the  color  of  title  is  a  question  of  law,  and  that  of  good 
faith  a  question  of  fact.^'  Also,  the  question  whether 
a  mortgage  for  a  larger  sum  than  was  due  was  in 
good  faith  designed  to  cover  future  advances,  is  held 
to  be  for  the  jury.*^ 

§  162.  It  is  the  province  of  a  jury  to  find  the  exist- 
ence of  a  title  by  x^i'escription.*^  Thus,  a  case  oc- 
curred in  ^ew  York  city,  of  which  the  syllabus  of 
the  reporter  is  as  follows :  "  Where  a  bill  was  filed  by 
the  owners  of  certain  piers,  in  the  city  of  N^ew  York, 
against  the  corporation  of  the  city  and  others,  claim- 
ing that  the   plaintiffs  were   entitled  to   the   entne 

^Benson  v.  Adam,  3  Barr.  chard,  16  111.424;  Shackleford w. 
(Pa.)  228.  Bailey,  35  111.  387  ;    Blanchard 

39  Noel  V.  White,  3T  Pa.  St.     v.  Pratt,  37  111.  243. 

623.  42  T^ijy  ^,  Harloe,  35  Cal.  306. 

40  Hall  V.  Gale,  20  Wis.  297.  ^3  Anderson  v.  Bock,  15  How, 

41  Wright    V     Mattison,     18  329. 
How.  50 ;  Woodward  v.  Blan- 


156  QUESTION'S    OP   LAW   AND   FACT.  [Part  I. 

wharfage  derived  from  the  outermost  ends  of  those 
piers;  that  they  had  enjoyed  such  wharfage  from  the 
first  sinking  of  the  piers  in  the  year  1809;  that,  upon 
the  extending  of  the  piers  in  1839,  they  assented  to 
the  extension  on  the  condition  that  their  exclusive 
rights  to  such  wharfage  should  be  reserved  to  them ; 
and  the  defendants  insisted  that  they  and  the  plaintiffs 
were  tenants  in  common,  that  there  had  been  no  actual 
ouster,  nor  acquiescence  by  them  in  the  exclusive 
enjo}anent  of  the  right  by  the  plaintiffs,  and  that  there 
was  no  sufficient  proof  to  warrant  the  court  in  pre- 
suming a  grant ;  —  held,  that  it  was  the  province  of  a 
jury  to  determine  whether  or  not  a  grant  would  be 
presumed;  and  that  the  question  to  be  submitted  to 
the  jury  would  be  whether  the  x^laintiffs,  and  those 
under  whom  they  claimed,  had  acquired  by  prescrip- 
tion an  exclusive  right  to  the  whole  of  the  wharfage 
at  the  outermost  end  of  the  piers,  previous  to  their 
assent  to  the  extension  in  1839."  ** 

§  163.  As  to  the  dedication  of  a  highway,  it  is  held 
that  more  depends  on  the  assent  of  the  owner  of  the 
land  than  upon  the  length  of  time  it  is  used;  and  that 
no  time,  however  long,  can  operate  as  a  dedication 
when  the  circumstances  of  such  use  do  not  indicate 
such  an  intention ;  ^^  and  especially  where  the  popula- 
tion is  sparse.  In  Illinois,  however,  it  is  held  that  a 
user  for  the  period  of  limitation  will  amount  to  a  ded- 
ication; and  the  jury  are  to  find  the  user,  or  the  ac- 
tual fact  of  dedication,  as  the  case  may  be.^^ 

44  Thompson  v.  City,  3  Sandf.  46  Daniels  V.  People,  21  111. 
488.  442. 

45  Shultzner  v.  State,  43  Ala. 
30. 


CnAP.  XII.]  TITLE.  157 

The  jury  may  infer  an  intention  to  dedicate  a  street, 
from  circumstances,  or  from  acts  or  declarations  of 
the  owner,  and  an  acceptance  from  listing  for  taxa- 
tion, &G.,  by  the  municipality;*^  and  acts  of  an  un- 
equivocal character  of  the  owner  and  the  public  will 
establish  the  fact  of  a  dedication,  in  a  short  period  of 
time,  quite  independently  of  the  limitation  period.^^ 
In  a  case  of  private  ways,  a  user  for  the  limitation 
period  is  for  the  jury.*^  And  where  a  defence,  in  an 
action  of  trespass,  was  that  the  way  over  which  the 
defendant  passed  was  a  private,  or  bj^-road,  it  is  a 
question  of  fact  whether  it  really  was  or  was  not  such 
by-road.°°  And  where  premises  are  demised  or  con- 
veyed "  with  right  of  way  thereto,"  the  jury  are  to  say 
what  is  a  reasonable  use  of  this  right.^^ 

§  164.  In  patent  titles  for  inventions,  it  is  held  that 
where  one  files  an  application  for  a  patent,  intending 
to  file  a  new  one,  which  he  also  does,  the  two  appli- 
cations are  to  be  regarded  as  parts  of  the  same  trans- 
action, and  both  as  constituting  one  continuous  peti- 
tion, and  that  the  question  of  the  continuity  of  the 
application  is  for  the. jury .^^ 

But  the  meaning  of  the  specifications  in  a  patent 
belongs  to  the  court;  and  if  it  cannot  be  satisfactorily 
determined  from  the  face  of  the  instrument,  it  is  void 
for  uncertainty.  So,  where  a  patent  for  propelling 
vessels  left  it  uncertain  whether  the  patentee's  claim 

4"  Wilder  v.   City,   12  Minn.  ^^  Van    Blarcom   v.  Frike,    5 

195.  Dutch   (N.  J.)  517. 

*^  Connehan  v.  Ford,  9  Wis,  ^^  Hawkins    v.    Carbines,     3 

244.  Hurl.  &  Nor.  914. 

^9  Steffy  V.  Carpenter,  37  Fa.  ^2  Godfrey  v.  Fames,  324,  — 

St.  43,  ClifiFord,  J.,  dissenting^ 


158  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

was  for  a  wheel  with  spu^al  construction,  or  merely 
spiral  paddles  to  a  wheel,  and  the  court  below  in- 
structed the  jury  that  "  the  question  whether  the  spe- 
cification was  ambiguous  in  that  particular  was  one 
compounded  of  law  and  fact,  and  that,  if  they  should 
find  that  a  spiral  wheel  and  a  spiral  propeller  were 
the  same  thing,  in  ordinary  acceptation,  then  the  spe- 
cification was  sufficiently  certain,"  it  was  held  error/^^ 
And,  in  England,  where  there  were  two  inventions 
for  accomplishing  the  same  purpose,  in  an  action  for 
infringement  it  was  held  that  it  was  for  the  court  to 
construe  the  specifications.^* 

The  general  principle  as  to  what  is  for  the  jury  is 
thus  laid  down  by  the  Supreme  Court  of  the  United 
States :  "  It  is  the  right  of  the  jury  to  determine,  from 
the  facts  in  the  case,  whether  the  specifications,  in- 
cluding the  claim,  were  so  precise  as  to  enable  any 
person  skilled  in  the  structure  of  machines  to  make 
the  one  described.  This  the  statute  requires ;  and  of 
this  the  jury  are  to  judge.  They  are  also  to  judge  of 
the  novelty  of  the  invention,  and  whether  a  renewed 
patent  is  for  the  same  invention  as  the  original ;  and 
whether  the  invention  has  been  abandoned  to  the 
public.  There  are  other  questions  of  fact  which  come 
within  the  province  of  a  jury,  such  as  the  identity  of 
the  machine  used  by  the  defendant  with  that  of  the 
plaintiff",  or  whether  they  have  been  constructed  and 
act  on  the  same  principle."  ^^ 

The  surrender  of  the  rights  of  the  inventor,  is  a 

^3  Emerson  v.  Hogg,  2  Blatch  ^^  Bat  tin  v.  Taggert,  17  How. 

C.  C.  1.  84. 

^  Bovill  V.  Pimm,  B1  Eng.  L. 
&  E.  442. 


Chap.  XII.]  TITLE.  159 

question  of  fact,  which  occurs  when  it  is  charged  that 
another  has  surreptitiously  obtained  the  knowledge 
of  the  invention,  and  has  pirated  its  use  before  a 
patent  has  been  secured  by  the  real  inventor;  who 
holds  against  the  pirate,  as  well  as  others,  after  the 
date  of  his  patent.^'' 

§  165.  A  patent  for  land  is  subject  to  the  same 
rules  of  construction  as  are  other  instruments  in 
writing.^'' 

§  166.  In  matters  of  tenancy,  where  the  facts  are 
admitted  in  writing,  there  is  nothing  for  the  jury,  of 
course;  but  it  is  held  that  all  inferences  from  the  facts 
so  stated  and  admitted  are  questions  for  the  jury  ex- 
clusively, while  the  court  is  confined  to  the  facts  them- 
selves, and  their  meaning  and  legal  effect ;  as,  whether 
the  legal  relation  of  landlord  and  tenant  existed,  and 
whether  the  tenancy  was  such  as  to  make  a  notice 
to  quit  necessary  to  entitle  the  landlord  to  maintain 
ejectment.^^ 

^^lether  a  tenant  holds  over  with  the  acquiescence 
of  his  landlord,  is  a  question  of  fact.^^  And  whether 
he  holds  on  any  of  the  terms  of  the  former  lease.'"'° 
And  whether  a  tenant  in  possession  is  a  tenant  of  the 
defendant  or  of  the  plaintiff's  lessor,  the  one  claiming 
title  through  a-  sheriff's  sale  on  execution,  and  the 
other  tlii'ough  a  deed  of  bargain  and  sale.''' 

§  167.   As  to  a  will,  where  it  appears  on  its  face  to 

56  Kendall     v.     Winsor,     21  ^^  jgh  ^  Chilton,  26  Mo.  259. 

IIow.  S21.  60  Hyatt  V.  Griffiths,  33  Eng. 

^''  Brown  v.  Huger,  21  How.  L.  &  E.  75. 

318.  61  McAulay    v     Eamhart,    1 

58  Howard,    Lessee,    v.    Car-  Jones  L.  (N.  C.)  503. 
penter,  22  Md.  23. 


160  QUESTIOIs'S    OF   LAW   AND    FACT.  [Part  I. 

be  a  deed  or  distribution  of  property  inter  vivos,  tlie 
question  is  for  the  court.  It  is  construed  to  be  a  will, 
whatever  its  form,  if  it  is  not  to  take  effect  until  the 
death  of  the  giver.*''  But  if  doubt  arises  from  its  im- 
perfect nature  or  otherwise,  the  facts  are  to  be  found 
by  a  jury,  including  the  fact  of  its  delivery,  and  the 
intention  and  purpose  of  its  execution.  The  court, 
however,  is  to  give  proper  guidance  in  the  construc- 
tion of  the  terms  of  the  instrument."^ 

But  whether  a  formal  will  has  been  executed  with 
due  formalities,  is  for  the  court;  ^  as  the  signing  and 
attestation  thereof;  ^^  and  whether  it  contains  special 
trusts.*^^ 

As  to  revocation,  where,  after  the  death  of  a  testa- 
trix, there  was  discovered,  m  a  barrel  of  waste  papers, 
a  will  twenty-five  years  old,  worn,  or  torn  into  several 
pieces,  Avhich  were  scattered  about  among  the  papers 
in  the  barrel,  it  was  held  to  be  for  the  jury  to  decide 
whether  the  injury  was  done  to  the  instrument  by  the 
testatrix  or  some  other  person,  and  if  by  her,  whether 
it  was  accidental,  or  intentional,  and  for  the  purpose 
of  revocation;  and,  to  aid  them  in  this,  it  was  also 
held  that  the  declarations  of  the  testator  that  she  had 
destroyed  it,  made  after  the  date,  were  admissible  in 
evidence.^^ 

The  degree  of  capacity  in  the  testator,  to  enable 
him  to  make  a  valid  will,  is  held  to  be  for  the  court ;  ^'^ 

62  Sartor  v.  Sartor,  89  Miss.  ^6  Wilson  u.  Whitfield,  38  Ga. 
Y60  ;  citing  cases.  283. 

63  Ferguson  v.  Ferguson,  27  ^^  Lawyer  v.  Smith,  8  Mich. 
Tex.  342.  423. 

^*  Rae  V.  Taylor,  45  111.  491.          ^s  Overton's  Heirs  v.  Exec'r, 
65  Riley  V.  Riley,  36  Ala.  499.      18  B.  Mon.  63. 


CiiAP.  XIII.]  POSSESSION.  161 

but  the  fact  of  capacity  is  for  the  jmy.^^  And  persons 
who  are  not  experts  may  testify  as  to  sanity,  or  insan- 
ity, giving  the  circumstances  from  which  they  formed 
their  opinions/"  There  is  some  conflict  of  authority 
here,  but  the  gi-eat  weight  of  authority  confirms  this 
statement. 

As  to  the  ratification  of  a  will  by  a  legatee,  in  ac- 
cepting its  provisions,  it  is  a  question  for  the  jury 7^ 


CHAPTER  Xm. 

Possession". 

§  168.  What  constitutes  possession  is  for  the  court; 
but  the  fact  of  actual  possession  is  a  question  for  the 
jury;  as  where  there  was  a  verbal  lease,  and  the  les- 
see entered  on  part  of  the  premises,  and  afterwards 
other  parties  occupied  the  remainder  under  other 
leases,  and  suit  was  brought  under  the  first  lease  for 
possession,  because  of  non-payment  of  rent,  it  was 
held,  1.  That  demand  must  be  made  before  suit. 
2.  That  the  other  parties  could  not  be  sued  und^r  the 
first  lease,  unless  they  entered  under  the  lessee,  or 
after  possession  by  the  lessee,  or  else  that  they  dis- 
possessed him  illegally;  and  that  the  matter  of  their 
actual  possession  was  for  the  jury.^  Possession  may 
be  held  in  different  modes;  by  enclosing,  cultivating, 

^^  Ware   v.  Ware,   8  Greenl.         '^  Duffey  v.  Presbyterian,  &c. 

(Me.)  50.  48  Pa.  St.  50. 

70  Roe  V.  Taylor,  45  111.  489.  i  Blackman  v  Welch,  44  Mo. 

11  45. 


162  QUESTIONS    OF    LAW   AKD   FACT.  [Part  I. 

erecting  buildings,  or  other  improvements,  or  by  any 
use  indicating  an  appropriation  of  the  premises;  all 
of  which  are  matters  of  fact.^  But  any  instruction 
which  refers  to  the  jury  the  question  of  "  legal  pos- 
session," is  erroneous,  since  the  legality  is  for  the 
court.^  And  also  the  kind  of  possession,  —  continu- 
ous or  interrupted,  —  and  the  length  of  time,  in  the 
legal  effect  thereof,*  leaving  to  the  jury  whether  an 
interi'uption  really  occurred,  or  the  whole  time  was 
occupied  by  the  possession.  If  there  is  no  evidence 
applicable,  the  matter  is  for  the  court,  as  where,  in 
Texas,  the  j^lea  of  limitations  was  put  in  as  a  defence, 
but  the  documentary  evidence  showed  that  neither  the 
plea  of  five  years',  or  of  three  years'  possession  could 
be  sustained,  it  was  held  error  for  the  judge  to  sub- 
mit the  question  to  the  jury.'^  In  Louisiana,  where  an 
action  of  jactitation  or  slander  of  title  was  brought, 
—  which  can  only  be  brought  by  one  in  possession,  — 
and  an  exception  to  the  petition  was  filed  on  the 
gi'ound  that  plaintiff  was  not  in  possession,  and  the 
exception  Avas  overruled  by  the  court  because  it  went 
to  the  merits  of  the  cause,  and  afterwards  a  jury  was 
impanelled,  to  whom  was  submitted  the  questions  of 
possession,  and  of  title,  on  appeal,  it  was,  at  first, 
held,  that  the  question  of  possession  was  properly 
before  the  jury,  as  the  court  below  had  previously 
decided;  but,  on  rehearing,  this  was  reversed,  and  it 
was  held  that  title  only  was  before  the  jury,  and  re- 
ciprocal claims  for  damages."    But  I  confess  I  do  not 

2  Truesdale  j'.Ford,  37  111.  212.  5  Chandler  v.  Von  Roeder,  24 

3  Blanchard  v.  Pratt,  ibid. 245.     How.  (U.  S.)  225. 

*  Groft  V.  Weakland,  34  Pa.          ^  Arrowsmith  v.  Durell,  14  La, 
St.  308.  An.  849. 


Chap.  XIIT.]  POSSESSION.  163 

understand  how  the  overruling  of  the  exception  could 
withdraw  the  fact  of  possession  from  the  jury,  any 
more  than  a  demurrer  in  ordinary  cases  has  a  similar 
effect. 

Whether  lessees  who,  before  the  term  stipulated, 
had  been  allowed  to  occupy  a  store-room,  in  order  to 
prepare  it  for  their  business,  in  a  large  hotel  building, 
—  the  lease  stipulating  that,  at  the  commencement  of 
the  term,  the  hotel  building  should  be  ready,  and  also 
that,  should  the  premises  become  untenantable  by  fire, 
the  term  should  thereon  cease,  and  a  fire  occurred  in 
a  little  more  than  two  months  after  the  commencement 
of  the  term,  the  hotel  being  still  unfinished,  —  had 
ever  in  fact  entered  on  the  term  and  taken  possession 
of  the  store,  was  held  to  be  a  question  for  the  jury,  in 
an  action  for  rent  for  the  two  months.^ 

§  169.  Constructive  as  well  as  actual  possession 
is  held  to  be  often  within  the  province  of  the  jury. 
Thus,  where  a  building,  on  a  lot  occupied  by  de- 
fendants, was  destroyed  by  fire,  and  the  plaintifis  im- 
mediately afterwards  built  a  canvas  house  on  the  rear 
part  of  the  lot,  and  rented  the  front  to  another,  under 
an  agreement  that  he  should  make  valuable  improve- 
ments, but  he  obtained  a  cancellation  of  his  lease,  and 
moved  away  the  buildings  he  had  built,  in  pursuance 
of  the  agreement,  and  on  the  same  day  the  defendants 
began  to  build  instead  thereof  a  store-room,  which 
they  occupied  or  rented  when  finished,  the  canvas 
house  still  remaining,  and  an  action  of  forcible  entry 
and  detainer  was  brought  by  the  plaintifis,  on  the  trial 
of  which  it  was  maintained  that  the  plaintiffs'  posses- 

">  La  Farge  v.  Mansfield,  31  Barb.  347. 


164  QUESTIONS    OF    LAW   A^D   FACT.  [Part  I. 

sion  of  the  property  in  dispute  was  insufficient  to 
maintain  the  action,  the  court  laid  down  this  rule :  "  It 
would  be  extremely  difficult  to  define  the  exact  pos- 
session which  the  statute  was  designed  to  protect, 
and  the  muniments  of  title  requisite  to  establish  a 
constructive  possession.  The  plaintiff  in  error  claims 
that  there  should  be  an  actual  possessio  pedis,  and 
that  the  nile  that  possession  of  a  part  of  a  tract  of 
land  marked  by  distinct  natural  or  artificial  bounda- 
ries, with  a  claim  of  title  to  the  whole,  draws  after  it 
the  constructive  possession  of  such  lot  or  tract  of 
land,  does  not  apply  for  the  purpose  of  an  action 
like  the  present;  that  the  statute  was  passed  to  pre- 
vent the  public  peace  from  being  disturbed  by  the 
illegal  and  forcible  entries  upon  land  Avhich  was  held 
by  occupancy  and  possession,  and  cannot  be  extended 
to  cases  where  the  party's  possession  is  constructive, 
or  his  right  to  possession  arises  from  implication  of 
law;  that  in  such  cases  he  should  be  turned  over  to 
his  remedy  by  ejectment,  and  the  court  held  that,  — 

"  What  is  actual  and  what  is  constructive  posses- 
sion, in  many  cases,  must  be  a  question  of  fact  for 
the  jury.  The  possession  and  cultivation  of  one  acre 
of  land,  without  acts  of  ownership  and  dominion,  would 
not  necessarily  draw  after  it  the  possession  of  six 
hundred  and  forty  acres,  unenclosed  and  unimproved; 
neither  should  the  actual  possession  of  one  half  a 
town  lot  be  so  construed  as  to  limit  the  party's  pos- 
session to  the  part  so  occupied,  without  regard  to  the 
acts  of  ownership  exercised  over  the  remainder.  It 
would  be  a  great  hardship  to  require  a  party,  in  every 
instance,  to  enclose  his  lands  by  a  substantial  U  nee ; 


Chap.  XIII.]  POSSESSIOIST.  165 

such  enclosure  would  be  evidence  of  possession,  but 
the  absence  of  it  would  not  be  conclusive  as  against 
other  acts  of  possession.  An  examination  of  the  evi- 
dence in  this  case  shows,  that  the  jury  might  very 
properly  have  found  an  actual  possession  of  the  prem- 
ises in  dispute  in  the  plaintiff,  at  the  time  of  the  entry, 
and  we  will  not  disturb  this  conclusion  of  fact."  ^ 

§  170.  Whether  the  widow  and  administratrix  of 
one  who  purchased  land  at  an  administrator's  sale, 
which  was  set  aside  after  he  had  occupied  it  a  year, 
and  his  widow  continued  to  occupy  after  his  death, 
was  liable,  either  individually  or  as  administratrix,  for 
the  use  and  occupation  of  the  land,  was  held  a  ques- 
tion of  fact  for  the  jury." 

§  171.  Wliere  a  brother  and  two  adult  unmarried 
sisters  entered  on  an  abandoned  improvement,  cleared 
it,  and  lived  on  it  many  years,  the  sisters  claiming 
ownership  with  the  brother,  and  aiding  in  its  cultiva- 
tion, and  in  paying  for  labor  done  on  it  by  hired 
hands,  and  for  this  purpose  carrying  on  weaving,  &c., 
it  was  held  a  question  of  fact,  whether  the  entry  and 
settlement  was  that  of  all,  or  of  the  brother  only,  as 
the  actual  head  of  the  family.^"  And  in  case  of  sale 
by  the  brother  alone,  it  was  decided  that  the  facts  of 
relationship  and  family  association  could  be  submit- 
ted to  the  jury  to  determine  whether  the  sisters  had 
knowledge  of  the  sale,  but  that  an  equitable  estoppel 
against  them  could  not  be  inferred  from  mere  rela- 
tionship, in  their  assertion  of  title. 

8  O'Callaghan  v.  Booth,  6  Cal.  i"  Iron  Co.  v.  Tomb,  48  Pa. 
65.                                                     St.  391. 

9  Patrick  v.   Adm'r,   27  Tex. 
681. 


166  .  QUESTIOXS    OF   LAW   AND   FACT.  [Part  1. 

§  172.  And  so,  where  a  husband  Hves  with  his 
family  upon  his  wife's  separate  real  estate,  using  it  as 
though  he  were  the  absolute  owner,  whether  he  held 
as  her  tenant,  or  what  is  the  character  of  his  posses- 
sion, is  for  the  juiy.'^  And  so,  whether  money  loaned 
by  a  wife  as  her  separate  property  was  the  money  of 
the  husband  furnished  to  her  by  him.^- 

§  17B.  In  cases  of  assault,  where  the  defence  is 
son  assault  demesne,  and  in  protection  of  the  defend- 
ant's actual  possession,  and  where  both  parties  claim 
the  possession,  it  is  for  the  jury  to  determine  which 
party  had  the  actual  possession  at  the  time  tlie  assault 
was  committed.^"^ 

§  174.  Wliat  constitutes  adverse  possession  is  for 
the  court,  but  the  facts  to  establish  that  possession 
are  to  be  found  by  the  jury.^^  "  To  sustain  a  title  by 
adverse  possession,  the  defendant  must  prove  a  con- 
tinued, open,  visible,  and  exclusive  possession.  His 
possession,  moreover,  must  be  marked  by  definite 
boundaries,  designated  either  upon  the  land  itself,  or 
by  the  description  in  his  deed.  The  land  must  have 
been  in  the  constant  and  uninterrupted  possession  of 
the  defendant,  and  those  under  whom  he  claims,  the 
length  of  time  prescribed  by  the  statute  of  limitations. 
It  must  be  a  continued  possession;  an  occasional  ex- 
ercise of  dominion,  by  broken  and  interrupted  acts  of 
ownership,  either  by  the  same  person,  or  by  different 
persons,  will  not  estabhsh  a  right.     The  legal   title 

^1  Albin  V.    Lord,   39    N.   H.  ^^  Parsons  v.  Brown,  15  Barb, 

200.  593. 

12  Black  V.  Nease,  3*?  Pa.  St.  "  Macklot  v.  Dubreuil,  9  Mo. 
436.  491. 


Chap.  XIII.]  POSSESSIOI^.  167 

always  draws  to  it  the  constructive  possession;  and 
if  the  possession  of  the  trespasser  is  interrupted,  the 
possession  of  the  real  owner  is  renewed,  and  that 
without  actual  entry.  The  possession  and  the  right 
go  together  until  there  is  an  actual  possession  adverse 
to  the  right.  ^^Teither  actual  residence  on  the  soil, 
nor  actual  cultivation,  or  enclosure,  is  necessary:  but 
there  must  be  something  tantamount  to  one  or  the 
other  of  these.  IN^o  matter  how  long  the  real  owner 
is  out  of  actual  possession,  his  title  and  his  construc- 
tive possession  remain  until  an  actual  hostile  posses- 
sion is  taken.  He  may  never  have  made  an  actual 
entry,  or  set  his  foot  upon  the  soil;  he  is,  neverthe- 
less, by  virtue  of  his  title,  in  constructive  possession. 
A  wrong  doer  can  derive  no  aid  from  title ;  he  rests 
on  possession  alone;  the  law  gives  him  no  construc- 
tive possession.  Actual  occupancy,  the  pedis  2)ositio, 
is  his  only  warrant."  ^^ 

And  so,  it  is  for  the  jury,  under  proper  instruction, 
to  determine  from  the  number,  character,  and  time  of 
entries  by  the  o^vner,  whether  they  show  a  common 
or  mixed  possession,  and  whether  the  possession  of 
an  opposite  party  claiming  by  marked  lines  was  ex- 
clusive, or  casual  and  accidental;  ^^  and,  indeed,  all 
circmnstances  having  a  bearing  on  the  assertion  of 
ownership,  are  for  the  jury;^^  as  whether  an  ecclesi- 
astical corporation  holds  under  a  license,  or  adverse- 
ly; '®  and  the  time  adverse  possession  has  continued;  ^^ 

1^  Cornelius     v.    Giberson,    1  ^' Rivers  V.Thompson,  43  Ala. 

Dutch   (N.    J.)   31,   and    cases  641. 

cited.  1^  St.  Peter's  Church  v.  Beach, 

16  O'Hara  v.  Richardson,  46  26  Conn.  365. 

Pa.  St.  891.  19  Wiggins  u.Halley,  lllnd.8. 


168  QUESTIONS    OF   LAW   AND   PACT.  [Part  I. 

and  whether  an  open  and  exclusive  possession  for 
thirty  years  was,  in  reahty,  adverse.^'' 

But,  as  in  other  matters,  if  the  adverse  possession 
is  undisputed,  it  does  not  go  to  the  jury.^'  And  it  is 
for  the  court  to  say  whether,  when  all  the  facts  proved 
are  true,  they  amount  to  an  adverse  possession.^^ 

"Wliether  possession  is  exclusive  is  for  the  jury 
alone.^"^  And  continuous,  where  a  holder  leaves  the 
premises  for  a  special  purpose,  and  is  absent  some 
months. ~^ 

§  175.  Whether  there  has  been  an  ouster  of  the 
heirs  of  a  deceased  co-tenant,  where  their  ancestor 
died  insolvent,  and  in  debt  to  his  co-tenants,  and  the 
survivors  j^aid  the  taxes  for  nearly  forty  years,  mort- 
gaged the  lands,  erected  buildings  on  it,  and  took  the 
profits,  is  a  question  of  fact.-^ 

§  176.  Whether  a  town  was  in  possession  during 
a  certain  period,  is  so  likewise,  under  the  following 
state  of  facts.  In  an  action  of  ejectment,  the  plaintiff 
claimed  by  descent  from  her  mother  —  the  defendant 
by  a  deed  from  a  certain  town  claiming  that  prior  to 
the  conveyance  the  town  had  held  adversely  for  a  spe- 
cified time.  During  that  period,  however,  the  defend- 
ant clauned  to  have  held  possession  by  an  agent  put 
in  charge  of  the  property  by  her  mother,  and  remain- 
ing in  charge  several  years  after  the  mother's  death. 
By  the  account  books  of  the  agent  (deceased),  and 

2**  Eaton  V.    Jacobs,    52  Me.  ^  Beverly    v.    Burke,    9   Ga. 

451.  447,  and  eases  cited. 

2^  Bowie  V.  Brahe,  3  Duer  (N.  ^^  Cunningham    v.   Patton,    6 

Y.)  44.  Barr.  (Pa.)  358. 

22  Paxson   V.   Bailey,   17    Ga.  25  Keyser  v.  Evans,  30  Pa.  St. 

602.  509. 


Chap.  XIII.]  POSSESSION^.  169 

those  of  the  town,  it  appeared  that  during  the  time 
in  question  the  agent  had  accounted  to  the  town  for 
the  rents,  and  paid  them  to  the  town.  But  the  plain- 
tiff thereupon  offered  evidence  that  her  brother  and 
joint-heir  (deceased  at  the  time  of  the  action)  was 
supported,  during  that  period,  by  the  town  as  a  pau- 
per, and  thus  the  rents  were  paid  in  towards  his  sup- 
port. The  evidence  was  left  to  the  jury  to  decide 
thereon  whether  the  town  was  in  actual  possession.^'' 

§  177.  Whether  the  use  of  a  right  of  way  over 
lands  belonging  to  a  hotel,  was  permissive,  or  adverse, 
was  held  to  be  a  question  of  fact,  for  the  jury,  under 
instructions,  as  to  the  nature  of  adverse  possession; 
and  how  far  it  might  exist  when  the  use  was  that  of  a 
passage-way,  over  land  attached  to  a  public  building, 
or  one  used  for  public  purposes.-^ 

§  178.  Wliere  the  revolution  of  a  mill-wheel,  near  a 
public  highway,  frightened  horses  passing  along,  and 
it  was  claimed  that  the  continued  use  of  the  mill  for 
thirty  years  had  conferred  a  right  to  continue  such 
use,  it  was  held  not  a  question  of  law,  but  of  fact.'^'^ 

§  179.  Where  the  declarations  of  an  occupant  ex- 
plain an  enclosure  and  cultivation,  tending  to  show 
that  these  are  not  adverse,  it  is  for  the  jury  to  decide 
upon  the  real  character  of  the  possession.^''  And  so, 
whether  possession  is  merely  colorable,  or  not,  where 
a  defendant  in  ejectment,  took  another  upon  the  dis- 
puted land,  rented  it  to  him,  but  both  came  away 
together,  after  nailing  up  the  cabin  on  the  premises, 

26  Gage  V.   Smith,   21    Conn.  28  House  v.  Metcalf,  21  Conn. 

TO.  639. 

2"  Putnam  v.Bowkcr,  11  Cush.  29  Keener  v.  Kaufman,  16  Md. 

545.  307. 


170  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

and  defendant  charged  the  other  not  to  disclose  the 
transaction.^^  And  whether  defendants  are  actually 
in  possession  or  only  as  trustees  for  a  corporation.^'^ 

§  180.  Wliere  a  tenant  in  common  conveys  land  of 
which  he  is  in  possession,  with  covenants  of  warranty 
against  all  claims  and  demands,  and  the  grantee 
enters  under  his  deed,  his  possession  is  adverse,  as 
a  legal  conclusion  ;  and  is  therefore  for  the  court 
only."^^ 

§  181.  The  sufficiency  of  acts  of  appropriate  do- 
minion, is,  of  course,  for  the  jury."^^ 

§  182.  Where  one  acquires  title  to  property  by 
adverse  possession,  and  consents  to  a  deed  of  gift 
executed  by  the  former  owner,  appointing  trustees  to 
the  property  for  the  use  of  the  wife  and  children  of 
the  adverse  possessor,  whether  his  prescriptive  title 
is  thereby  relinquished,  is,  it  seems,  a  question  of 
fact.'' 

§  183.  Where,  by  the  construction  of  a  deed,  the 
grant  therein  extends  beyond  the  eaves,  and  to  the 
walls  of  the  grantor's  house,  and  for  the  limitation 
period  the  water  is  allowed  to  drip  from  the  eaves 
upon  the  granted  land,  it  is  for  the  jury  to  determine, 
it  seems,  whether  the  owner  of  the  house  thereby 
acquires  a  title  by  adverse  enjoyment,  or  an  easement, 
or  no  right  at  all,  to  the  land  under  the  eaves.'"'  But 
this  appears  to  be  contrary  to  the  general  rule,  as  I 
judge. 

2^  Oliver  v.  Williams,  25  Ga.          ^^  Sharon  v.  Davidson,  4  Nev. 

219.  419. 

^^  Lucas  V.  Johnson,   8  Barb.  ^*  Lucas  v.   Daniels,   34  Ala. 

250.  191. 

^2  Manufac,  Co.  v.  Pendergast,         ^  Carbroy  v.  Willis,  7  Allen 

4  Foster  (N.  H.)  69.  (Mass.)  370. 


Chap.  XIV.]  SALES  AND   DELIVERY.  171 


CHAPTER    Xiy. 

Sales  and  Delivery. 

§  184.  What  is  a  sale,  and  what  is  a  delivery,  is,  of 
course,  under  the  general  principle,  for  the  court  to 
determine  or  define.^  But  whether  a  particular  sale 
is  completed  or  is  executory,  that  is,  to  be  fulfilled  on 
some  condition,  or  something  remains  to  put  the 
property  in  a  condition  to  sell,  is  for  the  jury.- 
Whether  an  actual  contract  of  sale  has  taken  place  or 
not,  and  if  so,  what  its  particular  terms  are,  —  an 
agreement  for  a  future  purchase,  or  a  completed 
sale,  but  liable  to  be  rescinded  on  conditions,  &c.,  — 
are  always  questions  of  fact.  But  where  the  ex- 
istence and  terms  of  a  contract  have  been  established, 
the  construction  of  the  contract  is  matter  of  law.^ 

§  185.  Whether  property  levied  upon  has  been 
properly  sold,  is  a  question  of  law.^  But  where  a 
statute  exempts  "  all  such  provisions  as  may  be  on 
hand  for  family  use,"  it  is  for  the  jury  to  determine 
whether  the  whole  of  a  lot  of  produce  which  the 
defendant  had  on  hand  at  the  time  of  the  levy  was 
needed  for  family  use.^ 

1  Clarke's  Adm'r  v.  Marri-  v.  McKnight,  13  Johns  (N.  Y.) 
ott's  Adm'r,  9  Gill  (Md.)  336.  295. 

2  McClurg  v.  Kelley,  21  Iowa,  ^  Bevan  v.  Byrd,  3  Jones  L. 
512.  (N.  C.)  39^  ;  Youn-   v.  Smith, 

3  Smalley  v.   Hendrickson,  5  10  B.  Mon.  (Ky.)  294. 

Dutch  (N.  J.)  373  ;  De  Ridder         ^  Atkinson    v.     Catcher,    23 

Ark.  102. 


172  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

§  186.  It  has  been  held  that  the  payment  of  coun- 
terfeit money  for  goods  sold  does  not,  m  Pennsyl- 
vania, divest  the  title  of  the  owner,  except  as  against 
a  subsequent  purchaser,  in  good  faith,  for  value. 
And  in  replevin  for  a  horse  which  had  been  thus  jjaid 
for,  and  sold  on  the  street  afterwards,  by  the  fraudu- 
lent purchaser,  at  an  exceedingly  low  price,  it  was 
left  to  the  jury  whether,  on  all  the  cii^cumstances  of 
the  case,  the  second  purchaser  was  a  hona  fide  pur- 
chasei'  for  value.'' 

§  187.  Whether  a  sale  of  chattels  in  part  payment 
of  a  debt,  and  a  transfer  of  notes  at  the  same  time, 
as  collateral  security  for  the  same  debt,  were  parts  of 
the  same  transaction,  or  separate  transactions,  has 
been  held  a  question  of  fact.  And  also  whether  a 
sale  in  such  a  transaction  is  honest  or  not.^  And 
whether  the  title  of  a  dissenting  partner  passed  in  the 
sale  of  partnership  property.^ 

§  188.  Where  two  persons  jointly  purchase  land, 
under  specific  articles  of  agreement,  and  one  of  them 
pays  part  of  the  purchase  price,  but  with  money  fur- 
nished by  the  other,  and  then  assigns  his  interest  to 
the  other,  who  completes  the  payments,  it  is  held  to 
be  for  the  jury  to  decide  whether  the  latter  was  the 
real  purchaser,  or  it  was  really  a  joint  purchase.^ 

§  189.  Wliere  one  assigned  to  his  creditor  his  in- 
terest in  an  agreement  with  the  creditor  for  the  pur- 
chase of  land,  and  yet  remained  in  possession  of  the 
land,  and  it  did  not  appear  that  any  part  of  the  debt 

^  Green  v.  Humphrey,  50  Pa.  ^  Stage     Co.     v.    Walker,    2 

St.  215.  Clarke  (Iowa)  515. 

7  Keen   v.   Preston,    24   Ind.  ^  Crow  v.  Crow,   29   Pa.    St. 

39T.  218. 


Chap.  XIV]  SALES  AND   DELIVERY.  173 

was  paid  by  the  assignment,  and  afterwards  a  judg- 
ment by  a  third  party  was  obtained  against  the  as- 
signor of  the  contract,  and  the  equitable  interest  of 
the  latter  bid  in  under  the  judgment  at  an  execution 
sale,  and  ejectment  was  brought  against  the  assignee's 
vendee,  who  claimed  under  the  assignment  as  an 
absolute  conveyance,  while,  on  the  trial  of  the  eject- 
ment, the  defendants  contended  that  it  was  not  an 
absolute  conveyance,  but  only  a  security  for  the  repay- 
ment of  money  advanced,  the  court  below  declared  it 
absolute,  and  refused  to  submit  the  question  to  the 
jury  —  it  was  held,  on  error,  that  in  the  absence  of 
any  express  agreement,  the  assignment  should  be  held 
as  a  mere  security,  yet  whether  it  was  an  absolute  con- 
veyance or  a  mortgage  depended  upon  circumstances ; 
and  where  the  assignment  was  without  consideration, 
no  money,  nor  any  part  of  the  assignor's  indebtedness, 
being  paid  thereon,  and  there  was  evidence  that  the 
assignor  remained  in  possession  after  the  assignment, 
and  of  the  assignee's  declaration  that  the  assignment 
was  not  absolute,  there  Avas  sufficient  evidence  to  jus- 
tify a  submission  to  the  jury,  to  find  whether  it  was 
not  intended  as  a  security;  and  the  refusal  of  the 
court  to  so  submit  the  question  was  error.^*^ 

§  190.  A  debtor  is  allowed,  when  in  failing  circum- 
stances, to  make  an  assignment  for  the  benefit  of  his 
creditors,  in  a  fair  and  equal  manner;  and  the  ques- 
tion of  fairness  in  the  transaction  is  a  question  of 
fact." 

§  191.  The  defendants,  having  invented  a  stocking- 

10  Rhines  v.  Baird,  41  Pa.  St.  ii  Wilson  v.  Pearson,  20  111. 

256.  87. 


174  QUESTIONS    OF   LAW   AKD   FACT.  [Part  I. 

loom,  and  olDtained  a  patent  for  it  from  the  United 
States,  sold  the  plaintiffs,  for  a  consideration,  half  the 
right  to  all  territory  without  the  United  States,  on  a 
covenant  with  the  23laintiffs  that  they  (the  plaintiffs) 
should,  as  soon  as  practicable,  send  an  agent  to  Eu- 
rope, to  exhibit  the  invention  and  sell  the  machines, 
and  sell  also  the  right  to  make,  use,  and  vend  the  same 
without  the  United  States;  that  the  plaintiffs  and 
their  agent  should  use  due  exertion  in  selling  to  the 
best  advantage  the  machines  and  the  rights ;  and  that 
if,  on  such  reasonable  efforts,  they  should  not  succeed 
in  selling  to  the  amount  of  one  thousand  dollars 
above  the  expenses  of  the  agency,  then  the  defendants 
would  repay  them  the  one  thousand  dollars  purchase 
money,  together  with  the  agent's  expenses,  or  convey 
to  the  plaintiffs  one  half  of  the  right  within  the  United 
States.  So  the  plaintiffs  sent  their  agent  to  Europe, 
who  contracted  with  Brettle  &  Co.,  in  London,  "  to 
proceed  forthwith  to  Scotland  for  the  purpose  of  con- 
sulting engineers,  or  men  of  science,  skilled  in  the 
construction  of  machinery,  and  by  all  needful  experi- 
ments, additions,  and  alterations,  to  improve  the  ma- 
chine, so  as  to  make  a  perfect  stocking  by  means  of 
steam  power,  and  then  return  and  deliver  it  to  the 
said  Brettle  &  Co.,  and  leave  it  in  their  possession  for 
two  months,  during  which  they  could  have  the  option 
of  purchasing  it  at  £15,000."  Action  of  covenant 
was  brought  for  the  one  thousand  dollars  and  ex- 
penses, wherein  an  issue  of  fact  arose  whether  the 
defendants  had  been  notified  by  the  plaintiffs  of  the 
failure  to  make  sales,  as  specified  in  the  agreement, 
within  a  reasonable  time.     And  the  judge  instructed 


Chap.  XIV]  SALES   AND    DELIVERY.  175 

the  jury  that  the  Brettle  covenant  was  not  properly 
within  the  scope  of  the  agency,  and  could  avail  noth- 
ing imless  it  had  been  referred  to  the  defendants  for 
their  assent.  This  was  held  to  be  error;  and  it  was 
held  that  the  question  should  have  been  submitted 
entire  to  the  jury,  whether,  in  all  the  efforts  that  had 
been  made  by  the  agent,  he  was,  or  was  not,  using 
reasonable  and  proper  efforts  to  effect  sales  of  the 
machines  and  right,  as  stipulated  by  the  covenant.^^ 

§  192.  ^^len  the  words  "  more  or  less "  are  em- 
ployed in  a  contract,  as  to  quantity,  it  is  for  the  court 
to  say  whether  there  has  been  a  substantial  compli- 
ance with  the  contract  in  the  delivery;  as,  for  ex- 
ample, where  the  words  were  used  in  a  broker's  note 
for  the  sale  of  goods  thus,  "  Sold  to  jS".  W.  for  account 
of  S.  C.  five  hundred  bundles,  more  or  less,  gunny 
bags;"  Avhich  goods  were  sold  for  the  purpose  of 
filling  a  ship.  On  delivery  there  was  a  deficiency  of 
twenty-five  bundles.  The  court  held  that  there  was 
no  latent  ambiguity  authorizing  parol  evidence  to 
show  an  understanding  between  the  parties  as  to 
whether  there  was  to  be  more  ar  less  than  the  five 
hundred.''^ 

§  193.  The  validity  of  an  order  of  sale  by  an 
Orphans'  Court  is  a  question  of  law,  and  must  be 
determined  from  the  record  alone,  without  evidence 
aliiinde.^^ 

§  194.  Delivery  and  acceptance  are  questions  for 
the  jury.     Thus,  where,  in  an  action  of  trespass  for 

12  Watson  z;.Walker,  33  N.  H,  i^Vyatt's  Adm'r  v.  Steele, 
132.                                                   26  Ala.  639. 

13  Cabot  V.  Winsor,  1  Allen,  546. 


176  QUESTIOXS    OF   LAW   A^^D   FACT.  [Part  I. 

carrying  away  the  plaintiff's  lumber,  the  defendant 
justified  as  an  officer  attaching  the  lumber  as  the 
property  of  a  third  party,  it  appeared  that  some  lum- 
ber had  been  purchased  of  this  third  party  by  the 
plaintiff,  and  a  portion  of  it  delivered  and  used,  and 
another  portion  had  been  marked  by  the  plaintiff  be- 
fore the  attachment.  It  was  held  to  be  for  the  jury 
to  determine  whether  the  lumber  had  been  delivered 
to,  and  accepted  by,  the  plaintiff,  according  to  the 
original  contract,  and  the  intention  of  the  parties,  or 
whether  the  contract  was  still  incomplete,  the  lumber 
not  having  been  measured,  nor  the  amount  ascertained, 
before  the  attachment  was  levied.^^ 

§  195.  But  constructive  delivery  is  a  mixed  question 
of  law  and  fact;  as  where  wheat  was  shipped  on  con- 
signment, and  on  arrival  was  mixed  with  other  wheat 
m  the  elevator,  and  the  receipts  for  it  made  it  deliver- 
able to  consignees,  or  order,  and  the  shipper  sold  the 
wheat,  and  received  payment,  and  gave  an  order  on 
the  consignee  for  the  delivery,  but,  before  the  pur- 
chaser found  the  consignee,  the  elevator  was  burned, 
and  the  wheat  destroyed,  it  was  held  no  deliver}^,  — 
so  that  the  purchase  money  could  be  recovered 
back,  —  and  that,  as  a  mixed  question  of  law  and 
fact,  it  should  have  been  left  to  the  jury,  under  the 
instructions  of  the  court.^*' 

§  196.  Whether,  by  a  bill  of  sale,  the  vendor  in- 
tended to  vest  immediate  title  in  the  vendee,  and 
whether  there  was  a  delivery  to,  and  a  subsequent 
possession  by,  the  vendee,  are  for  the  jury,  under  in- 
structions.^^ 

15  Kelsea  v.  Haines,  41  N.  11.  i^  Perkinsv.Dacon,13Mich.90. 
24Y.  1'  Adm'r  v.  Hock,  47  Mo.  330. 


Chap.  XIV.]  SALES   AND   DELIVERT.  177 

§  197.  Wliere  the  evidence  of  a  delivery  under  the 
statute  of  frauds  is  so  shght  that  the  court  would  set 
aside  a  verdict  sustaining  such  delivery,  it  is  the  duty 
of  the  court  to  withdraw  the  question  from  the  jury.'^ 

§  198.  "Wliere,  in  a  purchase  of  land,  there  is  also 
a  purchase  of  personal  property  thereon,  and  the  pur- 
chaser receives  a  conveyance  for  the  land,  the  ques- 
tion whether  the  vendee  had  actual  possession  of  the 
land  is  important  in  determining  whether  there  was 
an  actual  delivery  of  the  personal  property.^^ 

§  199.  A  removal  of  the  goods  from  a  building  in 
which  they  are  assigned  by  a  voluntary  assignment, 
is  not  necessary  to  pass  the  title ;  and  herein  whether 
they  have  been  delivered  or  not,  is  a  question  of  fact.^" 

And,  in  general,  replevin  may  be  maintained  where 
it  is  understood  and  intended  that  the  title  to  the 
property  should  pass  without  any  further  act  of  the 
parties."^ 

§  200.  "Wliere  the  price  of  a  table  was  sued  for, 
which  was  to  be  manufactured  and  delivered  on  a 
wharf  for  shipment,  and  when  notified  that  it  was 
ready,  the  defendants  said  they  would  give  the  maker 
notice  when  they  had  a  vessel  to  receive  it,  having 
refused  a  proposal  of  the  manufacturer  that  he  should 
dispose  of  it  otherwise,  who  accordingly  held  it  for 
shipment  by  the  defendants  until  it  was  burned  in  his 
custody,  it  was  held  to  be  for  the  jury  to  decide 
whether,  at  the  time  of  the  fire,  the  table  had  become 

18  Denny  v.  Williams,  5  Al-  20  Hall  v.  Wheeler,  13  Ind. 
len,  1.  312. 

19  Gaboon  v.  Marshall,  25  Cal.  21  j^^ea  v.  Riner,  21  111.  531. 
200. 

12 


178  QUESTIONS   OF   LAW  AXD   FACT.  [Part  I. 

the  property  of  the  defendants,  and  was  on  storage 
for  them;  although  it  was  in  evidence  that  he  was 
also  to  take  it  to  the  wharf  when  they  were  ready  to 
ship  it.-' 

§  201.  In  the  sale  of  labor,  as  where  a  house  was 
built,  but  not  so  well  as  the  contract  required,  but  the 
defendant  (the  owner)  took  possession,  it  was  held 
that  the  workman  was  entitled  to  receive  quantum 
meruit,  though  not  the  contract  price,  it  being  thus 
accepted.^' 

§  202.  Wliere  a  railroad  company  engaged  to  de- 
liver the  plaintiff's  baggage  to  a  cab  at  the  station,  it 
was  held  to  be  for  the  jury  to  determine  whether  the 
plaintiff  had  accej)ted  a  delivery  on  the  platform  or 
elsewhere,  in  lieu  of  that  in  the  contract.^* 


CHAPTER  XY. 

Promissory  !N'otes  —  Payment,  and  Usury. 

§  203.  Whether  a  promissory  note  is  property  or 
only  collateral  security,  where  two  are  jointly  indebt- 
ed, and  one  of  them  indorses  to  the  other,  so  as  to 
provide  for  his  share  of  the  debt,  the  note  of  a  third 
party,  and  afterwards  pays  the  other  also  a  sum  of 
money  sufficient  with  the  note  to  pay  his  share  of  the 

22  Weld  V.  Carne,  98  Mass.  24  Butcher  v.  R.  R.  Co.  29 
154.  Eng.  L.  &  E.  347. 

23  Becker  v.  Hecker,  9  Ind. 
499. 


Chap.  XV]  PROMISSORY  NOTES.  179 

joint  debt,  and  the  indorsee  of  the  note  paid  the  joint 
debt,  is  for  the  jury;  and  in  such  a  case  it  was  held 
that  the  jury  might  find  the  indorsed  note  to  be  prop- 
erty, and  not  collateral  security  in  the  hands  of  the 
indorsee,  ahhough  he  did  not  expressly  agree  to  dis- 
charge so  much  of  the  indorser's  part  of  the  joint  debt 
in  return.^ 

§  204.  And  where  evidence  leaves  it  doubtful 
whether  the  signer  of  a  note  is  a  principal  debtor,  or 
only  a  surety,  the  determination  is  with  the  jury.^ 

§  205.  A  promissory  note,  on  account,  perhaps,  of 
its  brevity  of  form,  is  an  exception  to  the  general  rule 
that  alterations  are  presumed  to  have  been  made  at 
or  before  signing.  And  if  the  date,  for  example, 
seems  to  have  been  altered,  it  cannot  go  to  the  jury 
until  the  holder  explains  the  alteration ;  because  it  is 
held  that  the  maker  of  negotiable  paper  is  reasonably 
supposed  to  have  issued  it  clear  of  all  blemishes, 
either  in  the  date  or  the  body  of  the  instrument,  so 
that  if  it  is  defective  when  issued,  it  devolves  the 
biu'den  of  explanation  and  proof  upon  the  holder,  and 
that,  too,  even  if  the  alteration  is  beneficial  to  the 
maker;  and  it  is  for  the  jury  to  say  whether  the 
alteration  was  made  before  or  after  the  note  was  ne- 
gotiated.^ 

§  206.  In  an  action  on  book  account  for  goods  sold 
and  delivered,  and  also  on  a  promissory  note,  it  is  for 
the  jury  to  say  whether  these  are  for  the  identical 


1  Rice  V.  Porter,  n  N.II.  135.         3  Ileffner  v.  Wemich,  32  Pa 

2  Wyley  v.  Stanford,  22  Ga.     St.  425. 
395. 


180  QUESTIONS    OP   LAW   AND   TACT.  [Part  I. 

goods,  or  whether  the  note  is  based  on  a  distinct  and 
independent  consideration.* 

§  207.  Where,  in  an  action  on  a  promissory  note, 
the  defendants  produce  evidence  tending  to  prove  the 
note  to  be  without  consideration,  the  question  goes  to 
the  jury  with  the  evidence  on  both  sides;  and  it  was 
held  erroneous  to  charge  "  that  the  plaintiff,  having 
been  notified  that  proof  of  the  consideration  of  the 
notes  in  suit  would  be  required  on  the  trial,  was 
bound,  under  the  circumstances  of  this  case,  to  make 
such  proof;  and  if  she  has  failed  to  prove,  to  the  sat- 
isfaction of  the  jury,  a  valuable  consideration  for  such 
notes,  or  either  of  them,  she  cannot  recover  thereon ;  " 
the  court  remarking,  "  The  error  in  this  point  is,  in 
not  looking  at  the  whole  case,  on  both  sides ;  for  the 
consideration  might  have  been  proved  on  the  defend- 
ant's evidence,  and  therefore  independent  of  the  gen- 
erality of  the  expression  ^  under  the  circumstances  of 
this  case,'  which  is  clearly  objectionable,  it  would 
have  been  erroneous  to  put  the  proposition  in  such 
language  as  would  have  led  the  jury  to  believe  they 
were  to  look  only  to  the  proof  on  the  part  of  the 
plaintiff,  for  the  evidence  of  such  failure,  if  any  there 
was."  ^  I  think,  moreover,  the  general  rule  is,  thai 
the  burden  of  proof  is  upon  the  party  impeaching  the 
consideration  of  a  note. 

§  208.  A  corporation  cannot  become  a  surety,  as 
an  accommodation  indorser,  or  in  any  other  form,  un- 
less the  note  has  been  discounted  in  good  faith,  on 
representations  by  the  officers  that  it  was  the  note  of 

4  Heffner  v.  Wemich,  32  Pa.  ^  Swain  v.  Etling,  32  Pa.  St. 
St.  427.  491. 


Chap.  XV.]  PROMISSORY   I^OTES.  181 

the  corporation,  or  unless  the  note  is  in  the  haiids  of 
a  hona  fide  holder  for  value  without  notice.  And 
where  suit  was  brought  against  a  corporation,  as  in- 
dorser,  a  conflict  arose  as  to  whetlier  the  indorsement 
was  for  the  accommodation  of  a  thu'd  party,  or  was 
discounted  for  the  defendant  by  the  plaintiff;  and,  if 
the  former,  whether  it  was  discounted  by  the  plaintiff 
on  representations  made  by  the  officers  that  it  was 
the  note  of  the  corporation,  received  by  them  in  the 
ordinary  course  of  business;  and  it  was  held  that 
these  questions  were  for  the  jury,  and  that  it  was 
error  for  the  judge  to  decide  that  the  plaintiff  was  a 
hona  fide  holder,  and  direct  a  verdict  for  him.^ 

§  209.  Where  a  note  is  payable  in  current  bank 
jotes,  it  is  for  the  jury  to  determine  the  value  of  the 
bank  notes  on  the  day  of  pajnuent.^ 

§  210.  And  where  bank  notes  are  destroyed,  their 
value  may  be  recovered  from  the  bank.  And  Avhere 
notes  issued  by  a  bank  were  sent  to  it  by  express,  and 
a  pai't  was  stolen  on  the  way  by  an  express  agent, 
who  destroyed  the  bills  he  had  taken,  after  the  amount 
had  been  paid  by  the  company  to  the  bank,  it  was 
held  that  the  property  in  the  bills  was  transferred  to 
the  company  by  the  payment  to  the  bank,  and  that 
their  subsequent  destruction  entitled  the  company  to 
recover  the  whole  amount  from  the  bank,  and  that  the 
nature  and  character  of  the  evidence  pertaining  to  the 
destruction  was  for  the  jury.® 

§  211.   Wliere,  on  an  assignment,  an  answer  to  a 

^  Bank  v.  Empire  Stone  Dress-  ^  Bank  v.  Express  Co.  45  Va^ 
ing  Co.  30  Barb.  423.  St.  427. 

"*  Williamson  v.  McGinnis,  11 
B.  Mon.  76. 


182  QUESTIONS    OF   LAW   AN1>   FACT.  [Part  I 

petition  denies  none  of  the  facts  fixing  the  liability  of 
an  indorser,  or  as  an  assignor  for  valne,  but  onl}^  de- 
nies that  the  plaintiff  was  the  holder  and  owner  of  the 
note,  and  alleges  that  the  note  had  been  assigned  to 
another,  and  the  objection  is  without  proof,  the  court 
should  decide  the  merits  of  the  controversy  without 
a  jury." 

§  212.  "Whether  there  was  any  agreement  to  dis- 
charge an  indorser  where  he  induced  the  holders  to 
sue  the  maker,  and,  pending  the  action,  the  plaintiff's 
attorneys,  with  the  assent  of  the  indorser,  took  from 
the  maker  a  part  payment,  and  a  note  for  the  residue, 
on  a  written  stip'i^ition  that  proceedings  should  be 
staj^ed,  but  if  the  new  note  was  not  paid  at  maturity, 
judgment  should  be  entered  in  the  action  pending,  and 
thereupon  surrendered  the  original  note,  saying  noth- 
ing about  releasing  the  indorser,  is  for  the  court  to 
determine;  and  it  is  held,  under  such  circiunstances, 
that  the  attorneys  having  explained  that  the  surrender 
of  the  original  note  was  made  inadvertently,  there  was 
no  agreement  to  discharge  the  indorser.'" 

§  213.  And  the  regularity  and  legality  of  proceed- 
ings in  protest  and  notice  of  dishonor  are  for  the 
court  to  determine.' 

§  214.  A  receipt  may  be  inquired  into  in  a  court 
of  law  or  equity ;  and  where  it  bears  date  subsequent 
to  the  date  of  a  note,  and  purports  to  be  in  full  on  a 
final  settlement  between  the  parties,  whether  it  in- 
cludes the  note  or  not  is  for  the  jury ;  and  even  where 

9  Van  Buskirk  v.  Levy,  3  Mot.  ^^  Watson  v.  Larpley,18  How. 

(Ky.)  135.  511. 

I*'  Bank  v.  Kennedy,  9  Bosw. 
(N.  Y.)  545. 


Chap.  XV.]  PKOIVnSSORT  N^OTES.  183 

the  note  is  signed  by  a  firm,  and  the  receipt  is  given 
in  the  proper  name  of  one  of  the  members  of  the  firm/^ 

§  215.  Where  it  was  claimed  that  notes  were  re- 
newals of  former  notes,  and  these  of  others  still  prior, 
and  back  in  a  continued  series,  all  for  the  same  debt, 
to  a  period  before  the  entry  of  a  lien  creditor's  judg- 
ment, who  has  precedence  over  a  mortgage  to  a  bank, 
the  question  of  renewals  was  left  to  the  jury;  and  this 
was  held  correct,  on  appeal.^^ 

§  216.  On  a  feigned  issue  to  try  whether  a  judg- 
ment has  been  paid  or  not,  the  question  of  payment  is 
one  for  the  jury.^* 

§  217.  "Whether  notes  were  received  in  payment 
on  an  account,  whei  e  the  defendant  had  delivered  to 
the  plaintifis  three  promissory  notes  of  third  persons, 
payable  in  metal,  and  there  was  no  proof  that  the 
plaintiiFs  had  agreed  to  take  the  notes  in  pajmient,  or 
assume  the  duty  of  collecting  them,  and  the  plaintiffs 
maintained  that  they  were  not  really  left  with  them 
as  collateral  security  even,  but  only  for  the  defend- 
ant's convenience  that  the  metal  in  which  they  were 
payable  might  be  received  by  them,  and  credited  on 
the  account,  and  while  the  notes  were  unpaid  the 
makers  failed,  belongs  to  the  jury  to  decide;  and  it 
was  held  error  in  the  court  to  instruct  the  jury  that 
"  under  the  facts  in.  evidence,  assuming  their  truth," 
the  opinion  of  the  court  was  that  the  amount  of  the 
notes  ought  to  be  credited,  and  to  direct  their  verdict 
accordingly.^^ 

^2  Burton  v.  Merrick,  '.II  Ark.  i*  Horner  v.  Hower,  49  Pa. 

360.  St.  477. 

13  Bank  of  Com:vu«  rc<»  44  Pa.  ^^  Sellers  v.  Jones,  22  Pa.  St. 

St.  423.  425. 


184  QUESTIONS   OF   LAW  AND   TACT.  [Part  I. 

And  where,  on  an  issue  to  ascertain  how  much  was 
due  on  a  cautionary  judgment,  a  question  was  sub- 
mitted to  the  jury  whether,  on  a  settlement  between 
the  plaintiff  and  defendant,  where  a  note  was  given 
by  the  latter  to  the  former,  the  note  was  received  in 
satisfaction  of  the  judgment;  —  held,  not  error. ^*'' 

And  where  one  party  sued  another,  and  a  third 
person  gave  his  note  to  the  plaintiff,  to  settle  the  suit ; 
whether  this  note  discharged  the  debtor  by  a  novation, 
was  held  for  the  jury.^^  Also,  whether  the  taking  of 
the  note  of  an  individual  partner  was  taken  as  collat- 
eral security  only,  or  as  an  extinguishment  of  the 
partnership  debt.^^ 

In  general  terms,  it  is  held  that  whether  a  note  or 
bond  is  accepted  in  satisfaction  of  an  original  claim, 
is  for  the  jury;  and  that  where  claims  transferred  to 
a  creditor  consist  of  the  indebtedness  of  others,  and 
there  is  no  agreement  to  receive  them  in  satisfaction, 
they  are  to  be  regarded  as  collateral  security  for  the 
original  debt.^^  But  that  agreement  may  be  implied; 
as  where  thi-ee  partners  were  sued  on  an  account,  and 
it  appeared  that  two  of  the  three  had  given  the  plain- 
tiff their  note  for  the  account,  and  the  action  was  dis- 
missed as  to  them,  and  maintained  as  against  the 
third,  it  was  held  to  be  for  the  jury  to  say  whether 
the  note  of  the  two  was  received  in  extmguishment 
of  the  debt  of  the  three ;  as,  if  so,  the  third  would  be 
discharged  of  the  debt.^*' 

16  Schilling  v.  Durst,  42  Pa.  ^^  g^one  v.  Miller,  16  Pa.  St. 

St.  130.  456,  and  cases  cited. 

1"  Wilson  V.  Hanson,  20  N.         20  Keerl  v.  Bridgers,  10  S.  & 

H.  378.  M.  (Miss.)  614. 

1^  Bennell  v.  Chamberlin,  26 
Conn.  48t. 


Chap.  XV.]  PROMISSORY   KOTES.  185 

Even  an  account  against  a  stranger  may  be  deliv- 
ered and  accepted,  in  !N"ew  York,  in  satisfaction  of  an 
account  or  note;  and  it  is  for  the  jury  to  decide  uj)on."^'' 

And  where  parties  are  indebted  to  a  bank,  and  exc 
cute  their  note  for  the  claim,  not  payable  to  the  banl% 
itself  directly,  but  to  one  of  the  officers  of  the  bank, 
whether  it  was  to  operate  as  an  extinguishment  of  the 
debt  by  novation,  and  thus  bar  the  action  on  the  ori- 
ginal contract,  is  for  the  jury,  under  instruction  that 
it  could  not  have  this  effect  except  on  agreement." 

§  218.  But  whether  evidence  proves  a  pa^anent  in 
law  is  for  the  court.  As  where  three  pe^-sons  exe- 
cuted a  note  to  thi^ee  payees,  and  one  of  the  payees 
gold  the  note  after  it  was  due,  receiving  the  prmcipal, 
and  afterwards  two  of  the  payees  indorsed  it.  The 
third  knew  nothing  of  the  transaction,  and  after  the 
sale  received  two  hundred  dollars  on  it  from  one  of 
the  makers.  Afterwards  the  indorsee  (defendant) 
sold  the  note  to  the  plaintiff,  and  received  payment 
for  it.  When  the  note  was  paid  to  the  plaintiff,  he 
was  compelled  to  allow  the  two  hundi'ed  dollars,  for 
which  he  sued  the  defendant,  whose  liability  turned 
upon  the  point  whether  this  was  a  legal  payment,  — 
the  plaintiff  having  been,  before  purchase,  told  that 
the  two  hundred  dollars  were  paid  on  the  note.^^ 

§  219.  Wliere,  in  case  of  a  suit  pending  against  an 
indorser,  on  a  negotiable  note  indorsed  in  blank,  a 
third  party  paid  the  plaintiff  the  amount  of  the  note, 
and  assumed  th-e  prosecution  of  the  suit,  —  the  ar- 

21  WillariiJ.  Germer,  1  Sandf.         23  pfost  v.  Martin,  9  Fostei 
(N.Y.)52.  315. 

22  Lyman   v    U.  S.   Bank,  12 
How.  239. 


186  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

raiigement  being  made  on  his  own  responsibility,  and 
the  note  paid  for  with  his  own  funds,  but  in  reaUty 
for  the  benefit  of  another  indorser,  who  desired  a 
judgment  to  be  rendered  against  the  defendant, —  the 
latter  claimed  the  transaction  to  be  either  a  payment 
of  the  note  by  this  other  indorser,  or  a  transfer  of  the 
legal  title  of  the  note  to  the  purchaser,  and  that  this 
was  a  question  of  law  for  the  court.  On  the  other 
hand,  it  was  claimed  to  be  only  an  executory  contract 
for  the  purchase  of  the  judgment  that  should  be  re- 
covered on  the  note.  It  was  submitted  to  the  jury, 
under  the  instruction  that  if  the  note  had  been  paid 
by  the  other  indorser,  or  actually  purchased  by  him 
who  had  paid  the  amount  to  the  plaintifi',  the  plaintiff 
could  not  recover;  but  that,  if  the  transaction  Avas 
only  an  executory  contract  for  the  judgment  to  be  re- 
covered, he  could  recover.  It  was  held  that  the  sub- 
mission to  the  jury,  and  the  instruction,  were  correct.^* 

§  220.  It  is  a  question  of  fact  whether  there  is  an 
agreement  to  extend  the  time  of  payment,  where  a 
bill  or  note,  having  time  to  run,  is  received  from  the 
maker  of  a  bill  or  note  overdue,  or  whether  this  is 
only  collateral  to  the  overdue  note.^^ 

§  221.  And  also  whether  an  order  on  another  per- 
Hon  is  taken  as  payment  when  the  amoimt  is  collected; 
or  merely  for  collection,^'"'  And  whether  stock  pay- 
ments were  upon  a  certain  subscription  sued  on,  or 
upon  a  new  issue  of  railroad  stock.^^  And  whether 
there  has  been  part  payment,  on  a  proper  application 

^  Comstock    V.    Savage,    27  ^^  Stevens    v.    Thornton,    26 

Conn.  184.  111.  328. 

25  Taylor  v.  Allen,  36  Barb.  27  r.  r.  Co.  f.  Cavctt,  12  Ind. 

297.  316. 


Chap.  XV.]  PROMISSORY   N^OTES.  187 

thereof,  on  a  mortgage  debt.'^  And  whether  the  ac- 
ceptance of  a  promissory  note  of  a  thii-d  person  was 
vokmtary,  or  was  compulsion  forced  upon  the  creditor 
by  necessity,  when  nothing  else  could  be  obtained.^^ 
In  the  former  case,  the  transaction  will  support  the 
defence  of  payment,  but  not  in  the  latter. 

§  222.  "Wliether  a  payment  was  voluntary,  made 
after  the  return  day  of  an  execution  quashed  on  mo- 
tion upon  the  ground  of  the  defendant's  discharge  in 
bankruptcy,  or  was  made  under  a  mistake  of  the  party 
as  to  his  rights  under  the  bankruptcy,  is  for  the  jury 
also.^° 

§  223.  Where  an  appraisement  was  had,  under  an 
order  of  the  Orphans'  Court  for  the  partition  of  lands, 
and  one  heir  accepted  one  portion  at  the  appraise- 
ment, and  entered  into  a  recognizance  for  the  pay- 
ment of  the  other  hens  their  proportional  shares,  on 
which  recognizance  suit  was  brought,  and  part  pay- 
ment pleaded,  in  this  that,  under  order  of  the  Orphans' 
Court,  a  trustee  had  sold  one  of  the  other  divisions  or 
portions,  and  all  the  proceeds,  after  paying  the  debts 
of  the  intestate,  were  paid  to  the  plaintiiF,  it  was  held 
to  be  for  the  jury  to  say  whether  this  was  received  as 
part  payment.'^^ 

§  224.  Whom  money  was  held  for,  under  the  fol- 
lowing circumstances,  was  held  for  the  jury  to  decide, 
— namely:  A  debtor,  rmable  to  pay,  agreed  with  the 
defendants  that  they  should  discount  bills  to  be  drawn 
by  him  and  accepted  by  his  creditors;  who  handed 

28  Barnes  v.  Brown,  69  N.  C.  so  Ewing  v.  Peck,  26  Ala.  415. 
439.  SI  Kidd  v.  Commonwealtb,  16 

29  Bank  v.  Sraiser,   1  Sneed  Pa.  St.  426. 
(Tenn.)  501. 


188  QUESTIONS   OF   LAW  AND   FACT.  [Part  .. 

the  acceptances  to  the  defendants.  The  defendants' 
agent  asked  them  when  they  required  paj^ment,  and 
they  rephed  next  day;  but  afterwards  desired  the 
payment  of  part  that  same  evening.  The  agent  re- 
phed that  he  would  not  give  the  check  to  the  plain- 
tiffs, but  to  the  debtor's  clerk,  and  that  he  should 
require  the  debtor's  order  for  the  balance.  The  debt- 
or's clerk  received  the  check,  and  handed  it  to  the 
plaintiffs,  and  on  the  same  evening  the  plaintiffs 
handed  the  defendants  an  order  by  the  debtor  for  the 
payment  of  the  balance  to  the  plaintiffs.  It  was  held 
a  question  of  fact  whether,  from  the  time  of  lodging 
the  order,  the  defendants  held  the  money  for  the 
debtor  or  the  plaintiffs.^^ 

§  225.  Wliere  payment  is  to  be  made  in  "  cash 
notes,"  the  jury  are  to  decide  what  is  the  meaning  of 
these  terms,  and  what  is  the  value  of  the  thing  meant.'^^ 

§  226.  Agreement  of  payment  on  a  release,  also  as 
follows,  namely :  Money  was  promised  to  be  paid  for 
a  release  of  plaintiff's  interest  in  land,  and  the  evi- 
dence tended  to  prove  that  the  defendant  promised 
to  pay  one  hundred  dollars  down,  and  an  additional 
amount  when  he  "  could  get  rid  "  of  a  mortgagee  of 
the  plaintiff  by  the  surrender  of  a  mortgage  previously 
agreed  upon.  In  the  release,  the  plaintiff  covenanted 
to  warrant  and  defend  the  land  from  all  encumbrances 
made  by  him.  Before  this,  the  mortgagee  entered  to 
loreclose  for  breach,  and  in  less  than  three  years  from 
the  entry  the  release  was  executed,  the  defendant 
took  possession  under  it,  and  occupied  after  the  ex- 

^2  Noble  V.  Discount  Co.  5  ^^  Ward  v.  Latimer,  2  Tex. 
rlurl.  &  Nor.  224.  248. 


Chap.  XV.]  PROMISSORY   l^OTES.  389 

piration  of  the  three  years  prescribed  by  tlie  statute 
had  elapsed,  —  the  mortgagee  absconding,  and  thus 
abandoning  his  suit.  It  was  held  that  it  was  for  the 
juiy  to  decide  whether  the  defendant  agreed  to  pay 
one  hundred  dollars  do^vn  for  the  release,  under 
instruction  that,  if  so,  plaintiff  could  recover  that 
amount,  and  no  more;  and  that  defendant  could  not 
avail  himself  of  his  covenant  in  the  release,"^^  the 
mortgagee's  claim  not  yet  being  relinquished,  or 
"  got  finally  rid  of,"  the  balance  of  the  money  for  the 
release  was  not  due,  and  as  the  suit  seemed  aban- 
doned by  the  mortgagee's  disappearance,  the  covenant 
was  not  yet  completely  broken,  and  so  these  are,  it 
appears,  the  grounds  of  the  two  branches  of  the 
ruling  in  the  case. 

§  227.  When  the  relation  between  parties  is  of  a 
business  character  only,  then  proof  of  j^ayments  and 
expenditures  by  one  for  the  use  of  another  creates  a 
presumption  that  these  are  in  discharge  of  indebted- 
ness; but  when  money  is  paid  by  a  father  for  liis  son, 
it  is  otherwise;  and  whether  money  paid  is  intended 
for  a  payment  or  a  gratuity  is  for  the  jury  to  deter- 
mine, from  all  the  circumstances.^^ 

§  228.  An  obligation  to  convey  lands,  independent 
*  )n  the  face  thereof,  may  be  shown  by  parol  evidence 
to  be  really  dependent  upon  the  payment  of  a  note 
for  the  purchase  money,  although  neither  the  note  nor 
the  bond  refers  to  the  other,  or  are,  apparently,  in  any 
wise  connected;  and  the  determination  of  the  matter 

3*  Bartlett  v.  Tarbell,  12  AI-  "•?'  Swain  v.  Etling,  32  Pa  St. 
Ion,  123.  492. 


190  QUESTION'S    OF   LAW   AKD   FACT.  [Part  I. 

is  with  the  jury.^"  And,  on  the  same  principle,  set- 
offs are  matters  of  fact.'*^ 

§  229.  In  an  action  for  damages  or  compensation 
against  a  raih-oad  company,  it  is  held  to  be  for  the 
court,  and  not  for  the  jury,  to  decide  whether  an  offer 
for  land  over  which  the  company  desired  to  pass  was 
by  w^ay  of  compromise,  to  avoid  legal  proceedings, 
or  not.''^ 

§  230.  A  note   payable   "  six  after   date "   is 

held  not  void  for  uncertainty.  And  although  it  is  a 
patent  ambiguity,  and  so  not  explainable  by  parol 
evidence,  yet  it  is  held  that  from  the  paper  itself, 
viewed  in  the  light  of  the  circumstances  under  which 
it  was  given,  the  intention  of  the  parties  may  be  in- 
ferred. But  it  is  also  held,  that  whether  the  intended 
time  of  payment  is  to  be  decided  by  the  court  or  the 
jury,  is  a  doubtful  point.^" 

§  231.  As  to  presumption  of  payment,  it,  in  gen- 
eral, belongs  to  the  jury:  as  where  a  vendor  sued  to 
recover  land  sold  by  him  ten  years  before,  and  pro- 
duced a  note  executed  by  the  vendee  at  that  time  for 
part  of  the  purchase  money,  the  vendor  having  given 
a  bond  to  convey  on  the  payment  of  the  note,  it  was 
held  error  to  instruct  the  jury  that  the  production  of 
the  note  repelled  the  presumption  of  payment  arising 
from  lapse  of  time ;  because  such  lapse  of  time  was  a 
circumstance  to  prove  payment,  notwithstanding  the 
production  of  the  note,  and  the  matter  should  have 

36  Younger  v.  Welch,  22  Tex.  ^8  pavis  v.  R.   R.,   11    Cush. 

425.  509. 

S"  Hudson   V.  Weir,   29   Ala.  ^^  Nichols  r.  Frotaiiighara,  45 

298.  Me.  925. 


Chap.  XV.  ]  PROMISSORY  K^OTES.  191 

been  left  to  the  jury.^"  But  I  doubt  if  this  is  in  ac- 
cord with  the  general  rule. 

If,  from  lapse  of  time,  the  presumption  has  arisen 
of  payment  on  a  contract,  and  a  deed  given  in  pur- 
suance thereof,  it  is  for  the  jury  to  decide ;  although 
t  may  be  withdrawn  from  them,  where  the  weight  of 
evidence  is  decisive;  so  that,  had  the  jury  decided 
against  the  giving  of  the  deed,  a  new  trial  would 
have  been  gi-anted.*^ 

What  will  repel  a  presumption  of  payment  is  some- 
times for  the  court;  as  where,  in  reply  to  such  23re- 
sumj^tion  arising  from  the  lapse  of  eleven  years,  it 
appeared  that  for  seven  years  of  that  time  the  defend- 
ant had  been  wholly  insolvent,  and  it  was  held  that 
the  presumption  did  not  arise  in  such  case.^" 

But  usually,  any  facts  and  circumstances  which 
tend  to  repel  the  presumption  of  payment,  are  to  be 
considered  by  the  jury.*^  And  it  has  even  been  held, 
that  a  demand  of  papnent,  in  1843,  of  a  note  bearing 
date  in  1827,  the  parties  to  which  are  brothers,  and 
on  which  suit  was  brought  in  1854,  was  sufficient  to 
repel  presumption  of  pajnnent,  and  was  for  the  jury 
to  decide.^*  But,  it  seems,  if  the  defendant  himself 
proves  such  facts  as  repel  the  presumption,  he  cannot 
require  the  court  to  submit  them  to  the  jury.  And  it 
is  held  sufficient  to  repel  the  presumption  of  pajTnent 
of  ground  rent,  arising  from  lapse  of  time,  that  the 

*o  Walker    v.    Emerson,    20  ^^  Grantham    v.    Canaan,    38 

Tex.  709.  N.  H.  270. 

"*!  Brotherson  t.   Jones,  Hill  ^*  Waters  v.  Waters,  1  Met. 

&  Dcnio  (N.  Y.)  173.  519. 

*2  Vv''oodbury     v.    Taylor,    3 
Jones  L.  (N    C)  506. 


192  questio:n^s  of  law  and  fact.        ipart  i. 

parties  imder  whom  the  defendant  claims  title  entered 
into  a  written  agi-eement  to  pay  no  more  ground  rent 
under  the  plaintiff's  title,  and  to  assist  each  other  in 
maintaining  resistance ;  and  had,  accordingly,  resisted 
the  collection.^^ 

"Wliere  mortgage  securities  are  not  subject  to  the 
statute  of  limitations,  twenty  years  after  due  has  been 
held  to  create  a  legal  presumption  of  payment;  but 
whether  that  presumption  is  repelled  by  proof  is  a 
question  of  fact.*^ 

Where  there  is  evidence  of  payment,  and  records 
of  proceedings  are  shown  to  contradict  presumption 
of  payment  from  lapse  of  time,  the  whole  goes  to  the 
jury.*^  And  where  there  are  circumstances  suffi- 
ciently accounting  for  the  creditor's  delay .^^ 

Where  rent  became  due,  and,  the  day  following, 
the  lessee  entered  into  a  wi-itten  contract  with  his 
lessor  for  a  surrender  of  the  unexpired  term,  in  con- 
sideration of  which,  and  other  stipulations,  the  lessor 
agreed  to  pay,  and  actually  did  afterwards  pay,  a  very 
much  larger  sum  than  the  rent  in  arrear,  it  was  held, 
(1.)  That  the  transaction  did  not  extinguish  the  rent 
due.  (2.)  That  from  the  contract  and  the  payment 
thereon,  no  legal  presumption  arose  either  that  the 
rent  in  arrear  had  been  paid,  or  relinquished  by  the 
lessor.  (3.)  That  these  facts  were  properly  left  to 
the  jury,  with  instructions  that  it  was  a  question  of 
fact  for  them  whether,  in  connection  with  the  entire 

*^  McQuesney  v.  Heister,  33         ^"  Levers  v.  Van  Biiskirk,  4 

Pa.  St.  435.  Pa.  St.  313. 

46  Jay     V.    Adams,    26    Me.         ^8  Reed  v.  Reed,  46  Pa.   St. 

333.  242. 


CiiAP.  XV.]  PROMISSORY  NOTES.  103 

transaction,  they  did  or  did  not  warrant  a  presumption 
of  the  payment  of  the  rent.^^ 

§  232.  On  direct  evidence,  it  is  a  question  of  law 
whether  a  contract  is  or  is  not  usurious.^''  But  where 
there  was  no  direct  evidence  that,  at  the  time  of  a 
loan,  a  usm'ious  agreement  was  made,  but  it  was 
shown  that,  twenty-two  days  afterwards,  the  borrower 
paid  and  the  lender  received,  for  the  use  of  the 
money  from  the  time  of  the  loan  until  the  payment,  a 
much  greater  sum  than  the  interest  at  seven  per  cent., 
it  was  held  to  be  for  the  jury  to  decide  whether  the 
loan  was  made  upon  a  usurious  agreement.^^ 

Where  one  was  asked  to  discount  an  accommoda- 
tion note,  but  replied  that  he  had  no  money,  and  then, 
being  asked  to  procure  a  discount  on  it,  took  it,  in- 
dorsed it,  and  got  it  discounted  by  the  plaintiffs,  at 
lawful  interest,  and  the  plaintiffs  credited  him  with 
the  amount,  but  in  paying  over  the  proceeds  to  the 
first,  he  retained  a  large  percentage,  it  was  held  that 
the  jury  were  warranted  by  the  facts  in  finding  that 
there  was  no  usury,  —  a  part  of  the  sum  retained 
being  regarded  as  a  commission  for  procuring  the 
discount.^- 

It  is  held  that  negotiable  paper  may  be  sold  for  less 
than  its  face  without  usury,  and  the  whole  amount  be 
collected  of  the  maker,  at  maturity.  And  whether 
the  transaction  is  in  good  faith,  or  only  a  subterfuge 

49  Sperry  v.  Miller,  16  N.  Y.  ^^  Catlin    v.   Gunter,    1    Ker- 

412,  413.  nan  (N.  Y.)  371. 

^•^  Belden  v.  Gray,  5  Florida,  ^^  Bank    v.    Betts,    9    Bosw. 

504.  (N.  Y.)  552. 

13 


194  QUESTIONS    OF   LAW    A^ID   FACT.  [Part  I 

to  cover  usury,  is  a  question  for  the  jury."  Also, 
where  the  premium  of  exchange  charged  on  the  sale 
of  a  draft  is  unreasonable  or  exorbitant,  whether  the 
transaction  is  a  cover  for  usury .^^ 

But  there  must  always  be  some  evidence  tending 
to  show  usury,  before  the  question  goes  to  the  jury; 
since  pmma  facie  a  transaction  is  honafide;  and  it  is 
held  that  the  test  whether  the  transfer  of  a  note  by 
the  payee  to  the  holder  at  more  than  the  legal  rate  of 
interest,  is  a  sale  or  a  usurious  loan,  is,  whether  it 
was  a  j^erfect  and  available  note  in  the  hands  of  the 
payee  at  the  time  of  the  transfer,  upon  which,  when 
due,  he  could  have  maintained  an  action  against  the 
maker.^^ 

Wliere  A  knew  B  to  have  a  number  of  bills  of  a 
bank  of  another  state,  not  bankable  in  iN'ew  York  city, 
being  subject  there  to  a  discount,  but  passing  at  par 
in  ordinary  business,  and  applied  for  a  loan  of  them 
amounting  to  f  5000,  offering  for  the  loan  his  notes, 
payable  every  ninety  days,  in  Kew  York,  and  to  give 
security  thereon,  statmg  that  he  wanted  the  money  to 
use  elsewhere,  and  the  bank  bills  would  answer  his 
purpose,  the  money  was  obtained  thus  on  legal  in- 
terest, and  notes  given  without  anything  being  said 
about  interest  by  either  party.  A  used  the  greater 
portion  of  the  bills  in  his  business.  Held,  in  an  ac- 
tion on  two  of  the  promissory  notes,  that,  although 
both  parties  knew  the  bills  were  at  a  discount  in  New 

^  Mix  V.  Insurance  Co.  11  ^  Williams  v.  Reynolds,  10 
Ind.  117,  and  cases  cited.  Md.  66. 

^  Cuyler  v.  Sanford,  8  Barb. 
(N.  Y.)  232. 


Chap.  XV. ]  PEO^nSSOKT   I^OTES.  195 

York,  the  transaction  was  not,  of  necessity,  usurious; 
and  that  if  B  did  purposely  make  the  arrangement,  and 
thereby  reaUzed  more  than  seven  per  cent.,  but  with- 
out actual  usurious  interest,  the  transaction  was  not 
thereby  rendered  usurious  per  se;  and  that,  whether 
the  agreement  for  the  loan  was  in  fact,  and  in 
intention,  corrupt  and  usurious,  was  a  question 
of  fact,  which  ought  to  have  been  submitted  to  the 
jury.^^ 

AVhere  it  was  alleged  that  a  note  was  in  form  given 
for  a  pretended  mterest  of  the  payee  in  real  estate, 
which  interest  had  ceased  to  exist,  but  that,  in  fact,  it 
was  given  for  a  usurious  loan  of  money,  —  there 
being  evidence  tending  to  prove  these  allegations, 
which  the  plaintiff  denied,  —  it  was  held  proper  to 
refer  this  question  to  the  jury,  and  not  direct  a  ver- 
dict. Also  held  correct  for  the  judge  to  instruct  the 
jury  that  if,  at  the  tune  of  the  loan  for  which  the  note 
was  given,  the  plaintiff  had  made  up  his  mind  not  to 
take  the  land  interest  of  the  payee,  and  that  the 
makers  understood  this,  and  instead  of  the  transac- 
tion being  a  real  bargain  and  sale,  the  proceedings 
were  merely  a  resort  of  the  parties  as  a  cover  of  a 
usurious  loan,  the  whole  transaction  would  be  usuri- 
ous and  void,  it  being  a  question  of  fact  what  was 
the  intention  of  the  parties,  and  what  the  real  trans- 
action.^^ 

"Wliere  the  transfer  of  a  note  at  a  rate  of  interest 
usurious  in  the  state  of  the  parties'  residence,  is  made 
in  another  state,  the  transaction  is  not  necessarily  an 

^  Robbins  v.  Dillaye,  33  ^^  Ayrault  v.  Chamberlain,  33 
Barb.  79.  Barb.  236. 


196  QUESTIONS    OP   LAW   AJ^TD   FACT.  [Pakt  I, 

attempt  to  evade  the  usury  laws.  This  is  a  question 
for  the  jury.^^ 

Whether  a  discounter  was  an  agent  or  broker  of 
the  maker,  or  was  himself  the  taker,  cannot  be 
referred  to  the  jury,  unless  there  is  evidence  tending 
to  show  such  agency  or  brokerage.  In  a  case  where 
this  was  done,  it  was  held  error;  and  the  case  was 
remanded.^'^ 

A  paper  executed  by  the  payee  at  the  time  of 
transferring  a  note  is  admissible  to  prove  usury,  al- 
though not  sufficient,  of  itself,  to  do  so;  and  it  is  for 
the  jury  to  deternmie  its  effect.^** 


CHAPTEK  XYI. 

Insurance. 

§  233.  Whether  one  who  has  erected  a  building 
on  land  which  he  does  not  own  has  an  insurable  in- 
terest therein,  is  a  question  for  the  jury.^ 

§  234.  Likewise,  whether  there  have  been  material 
misrepresentations  made  by  the  insured  in  obtaining 
a  policy,  unless  those  representations  are  warranties, 
when  it  is  held  they  are  to  be  so  construed,  and  by 
the  court;"  so  that  it  was  error  to  submit  the  question 
to  the  jury  whether  the  particulars  in  which,  at  the 

^^  Durant  v.  Banta,  3  Dutch  ^  Mitchell    v.   Insurance   Co. 

(N.  J.)  637.  32  Iowa,  426. 

59  White  V.  Stillman,  25  N.  Y.  ^  l^  jjoy  v.  Insurance  Co.  39 

543.  N.  Y.  92.     (Miller,  J.,  dissent- 

^'^  Tucker    v.    Wilamouicz,   3  ing.) 
Eng.  (Ark.)  157. 


Chap.  XVI.]  IN^StrRANCE.  197 

time  when  the  pohcy  was  made,  the  premises  did  not 
correspond  with  the  description,  did,  or  did  not,  in- 
crease the  risk."^ 

But  when  the  pohcy  does  not  expressly  make  the 
representations  a  part  of  itself,  even  if  they  are  to  be 
held  to  be  warranties,  and  the  survey  was  signed  by 
the  plaintiff  and  received  by  the  agent  as  a  private 
memorandum,  and  was  not  presented  until  after  the 
policy  had  been  delivered  without  conditions  regard- 
ing the  survey,  it  has  been  held  a  question  for  the 
jury;  and  also,  in  connection  therewith,  whether  cer- 
tain acts  or  omissions  increased  the  risk.* 

Even  an  immaterial  misrepresentation  in  a  survey 
or  application  made  a  part  of  the  policy,  has  been 
held  to  discharge  the  liability  of  the  company.  Thus 
where  an  answer  to  a  question  in  an  application  for 
insurance  on  a  factory,  namely,  "  Is  there  a  watchman 
in  the  mill  during  the  night?"  was,  "There  is  a 
watchman  nights,"  but  it  appeared  that  on  Sunday 
nights  there  was  no  watchman,  the  court  held  there 
was  a  fatal  breach,  since  the  answer  would  properly 
be  construed  that  there  was  a  watchman  every  night; 
and  that  it  would  not  be  amended  by  proof  of  a  cus- 
tom in  that  section  of  the  country  not  to  keep  a  watch 
from  twelve  o'clock  Saturday  night  until  the  same 
time  Sunday  night.  The  exception  should  have  been 
clearly  stated,  and  so  the  effect  of  the  breach  was  to 
annul  the  policy  without  regard  to  the  materiality  of 
the  warranty,  or  whether  the  breach  had  anything  to 
do  in  producing  the  loss.     And  the  rule  is   quoted 

^  Le    Eoy    ik  Insurance   Co.  *  Le    Roy    v.  Insurance    Co. 

39  N.  Y.  92.     (Miller,  J.,  dis-     Ibid,  57. 
senting.} 


198  QUESTIONS    OF   LAW    A2^T)   PACT.  [Part  I. 

from  ]Marshall  on  Insurance,  "A  warranty  being  in 
the  nature  of  a  condition  precedent,  and  therefore  to 
be  performed  by  the  insured  before  he  can  demand 
performance  of  the  contract  on  the  j)art  of  tlie  in- 
surer, it  is  quite  uumaterial  for  what  purpose,  or  with 
what  view  it  is  made,  or  whether  the  insured  had 
any  view  at  all  in  making  it.  But  being  once  inserted 
in  the  policy,  it  becomes  a  binding  condition  on  the 
insured,  and  unless  he  can  show  it  has  been  literally 
performed,  he  can  derive  no  benefit  from  the  policy. 
The  very  meaning  of  a  warranty  is  to  preclude  all 
question  whether  it  has  been  substantially  complied 
with,  or  not.  If  it  be  afl[iniiative,  it  must  be  literally 
true ;  if  promissory,  it  must  be  strictly  performed."  ^ 

But  where  the  warranty  relates  not  to  a  fact  so 
much  as  to  a  description  of  the  building  insured,  the 
rule  is  relaxed,  and  substantial  correctness  is  ad- 
mitted, which  is  to  be  judged  by  the  jury,  as  to 
whether  there  is  a  material  variation  or  not.*^ 

And  a  warranty  may  be  limited  also  in  its  express 
terms,  as  where  the  language  is,  that  the  insured  cov- 
enants and  agrees  to  and  with  the  said  company,  that 
the  foregoing  is  a  just,  full,  and  true  exposition  of  all 
the  facts  and  circumstances,  in  regard  to  the  condi- 
tion, situation,  value,  and  risk  of  the  property  to  be 
insured,  so  far  as  the  same  are  known  to  the  appli- 
cant, and  are  material  to  the  risk."  And  in  all  cases 
except  those  of  absolute  warranty,  the  question  of 
materiality  is  for  the  jury.^     And  where  the  limiting 

^  Ripley  v.  Insurance  Co.  30  "  Garcelon   v.  Insurance   Co. 

N.  Y.  157,  and  authorities  cited.  50  Me.  582. 

^  Tessin  v.  Insurance  Co.  30  ^  Mutual     Insurance    Co.    v. 

Mo.  38,  and  cases  cited.  Deale,  18  Md.  50. 


Chap.  XVI]  rN^SUKAXCE.  199 

clause  quoted  above  is  employed,  it  seems  that  if  an 
answer  to  a  question  as  to  the  "relative  situation 
of  other  buildings"  specified  two  buildings  "with 
fifty  feet,"  the  court  will  construe  it  to  mean  "  with- 
in fifty  feet,"  and  construe  the  answer  to  be  suffi- 
cient, even  if  one  of  the  buildings  stands  within  two 
feet.« 

A  concealment,  as  well  as  a  positive  misrepresenta- 
tion, comes  within  the  province  of  the  jury.^'^  The 
distinction  is  thus  stated:  "Misrepresentation  is  the 
statement  of  something  as  fact  which  is  untrue  in 
fact,  and  which  the  assured  states,  loiowing  it  to  be 
not  true,  with  an  intent  to  deceive  the  underwriter; 
or  which  he  states  positively  as  true  without  knowing 
it  to  be  true,  and  which  has  a  tendency  to  mislead, 
such  fact,  in  either  case,  being  material  to  the  risk. 
Concealment  is  the  designed  and  intentional  with- 
holding of  any  fact  material  to  the  risk,  which  the 
assured,  in  honesty  and  good  faith,  ought  to  commu- 
nicate to  the  underwriter;  mere  silence  on  the  part 
of  the  assured,  especially  as  to  some  matter  of  fact 
which  he  does  not  consider  it  important  for  the 
underwriter  to  know,  is  not  to  be  considered  as  such 
concealment.  Aliud  est  celare,  aliud  tacere.  And 
every  such  fact,  untruly  asserted  or  wrongfully  sup- 
pressed, must  be  regarded  as  material,  the  loiowledge 
or  ignorance  of  which  would  materially  influence  the 
judgment  of  the  underwriter  in  making  the  contract 
at  all,  or  in  estimating  the  degree  and  character  of 
the  risk,  or  in  fixing  the  rate  of  the  premium.     If  the 

^  Allen    V.   Insurance    Co.    5  ^^  Clark   v.  Insurance  Co.  40 

Gray,  389.  N.  H.  338,  and  cases  cited. 


200  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

fact  SO  untruly  stated,  or  purposely  suppressed,  is  not 
of  tills  character,  it  is  not  a  misrepresentation,  or  con- 
cealment, within  this  clause  of  the  conditions  annexed 
to  the  policy."  ^^ 

If  there  be  an  apparent  conflict  between  the  repre- 
sentation and  facts  corre&jjonding,  and  the  by-laws  of 
the  company,  the  former  will  prevail;  and,  as  usual, 
the  materiality  of  the  variance  will  be  for  the  jury,  and 
determined  on  the  ordinary  grounds.  And  where 
an  application  on  a  stock  of  goods  represented  that 
the  stock  all  consisted  of  "  goods  usually  kept  in  a 
country  store,"  and  that  there  was  no  "cotton  or 
woollen  waste,  or  rags,  kept  in  or  near  the  property 
insured,"  and  the  by-laws,  to  which  the  insurance  was 
expressly  made  subject,  prohibited  the  insuring  of  any 
building  in  which  any  cotton  or  woollen  waste  was 
allowed  to  remain  at  night,  and  prescribed  that  all  cot- 
ton, woollen,  hempen,  or  oily  waste,  or  rags,  should  be 
removed  or  destroyed,  every  evening,  it  was  held  no 
violation  to  keep  clean  white  cotton  rags,  if  usually 
kept  in  the  stock  of  a  country  store. ^^ 

A  positive  misrepresentation  of  future  facts,  if  ma- 
terial, will  vitiate  a  policy  as  well  as  of  present  facts. 
Thus,  where  the  question  was,  "  During  what  hours 
is  the  factory  worked?"  and  the  answer,  "We  run 
the  cards,  pickers,  drawing-frames,  and  speeders,  day 
and  night;  the  rest  only  twelve  hours  daily.  We  only 
intend  running  nights  until  we  get  more  cards,  (fcc, 
which  are  making.  We  shall  not  run  nights  over  four 
months,"  it  was  held  to  constitute  a  positive  agree- 

^1  Daniels  v.  Insurance  Co.  12  ^^  Elliott  v.  Insurance  Co.  13 
Cush.  425.  Gray,  145. 


Chap.  XVI.]  IKSURAKCE.  201 

ment  to  desist  running  at  night  on  the  reception  of 
the  new  cards,  and  within  four  months  —  the  breach 
of  which  would  avoid  the  pohcy.'^ 

It  is  a  matter  of  no  consequence  whether  represen- 
tations are  attached  to  the  pohcy,  or  contained  in  a 
separate  paper,  and  referred  to.  In  the  latter  case 
they  are  construed  together,  as  well  as  in  the  former; 
and,  in  either  case,  materiality  is  for  the  jury.'* 

Where  an  application  represented  that  two  small 
buildings  were  to  be  removed  fifteen  feet,  and  a  pol- 
icy was  secured,  a  loss  occurred  before  the  removal. 
It  was  held,  thereon,  that  the  insured  was  entitled  to  a 
reasonable  time  to  make  the  removal;  and  what,  under 
the  circumstances  of  the  case,  was  a  reasonable  time, 
was  held  a  matter  of  fact.''' 

A  misdescription  of  the  property  is  not  of  itself  a 
misdescription  of  the  title  or  interest  in  it.'^ 

Wliere  goods  in  a  store  are  insured,  and  the  condi- 
tions annexed  to  the  policy  require  a  description  of 
the  property  insured  and  its  relative  situation  as  to 
other  buildings,  distance  from  each,  if  less  than  ten 
rods,  &G.,  a  misstatement  as  to  the  situation  of  the 
store  building  with  other  buildings,  will  avoid  the 
policy,  although  the  store  building  is  not  the  subject 
of  the  insurance  —  there  being  no  difference  in  this 
respect  between  the  building  and  its  contents.^^ 

Where  there  is  no  warranty,  and  the  answer  in  an 

^^  Bilbrough  v.  Insurance  Co.  ^^  Fire  Insurance  Co.v.Coates, 

6  Duer  (N.  Y.)  587.  14  Md.  298. 

•^^Boardraan  z;.  Insurance  Co.  -^^  Wilson   v.  Insurance  Co.  1 

20  N.  II.  556.  Selden   (N.  Y.)60;    Sextou  v. 

^^  Lindsay  v.    Insurance   Co.  Insurance  Co.  9  Barb.  191. 
3  R.  I.  160. 


202  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

application  states  the  nearest  buildings  within  ten  rods, 
but  does  not  state  all  the  buildings  within  ten  rods,  it 
is  held  there  is  no  material  concealment  necessarily ;  '* 
and  whether  it  is  material,  or  not,  is  for  the  jury.'^ 
And  where  the  policy  prohibits  an  alienation  of  the 
property,  it  is  held  there  is  no  breach  in  anything 
short  of  a  conveyance  of  the  title. "° 

Misrepresentation  of  value  is  subject  to  the  same 
rules  as  that  of  facts.^' 

Also,  in  a  life  insurance  policy,  the  same  rules  pre- 
vail. But  in  these,  as  well  as  others,  it  is  held  that 
warranties  are  not  to  be  created,  or  extended  by  con- 
struction, but  must  arise,  if  at  all,  from  the  fair  inter- 
pretation and  clear  intendment  of  the  words  used  by 
the  parties.^- 

In  marine  insurance  the  seaworthiness  of  a  vessel  is  a 
presumption  of  law ;  and  whether  the  evidence  has  re- 
moved that  presumption  is  for  the  jury  to  determine.'^ 
So  held  in  Maryland;  and,  in  Missouri,  it  is  held  that 
whether  the  unseaworthiness  was  a  fact  concealed  at 
the  issuing  of  the  policy,  is  for  the  jury,  but  the  court 
determines  what  unseaworthiness  is.~*  A  warrant  of 
seaworthiness,  however,  only  relates  to  the  inception 
of  a  voyage.-^ 

§  235.  The  qiiestion  of  increased  risk  is  also  a  ques- 

18  Gates   V.   Insurance  Co.  2  ^  Campbell  v.  Insurance  Co. 

Comst.  (N.  Y.)  46.  98  Mass.  391,  and  cases  cited. 

1^  Masters    v.   Insurance  Co.  ^'^  Field    v.  Insurance   Co.  3 

11  Barb.  632.  Md.  250,  and  cases  cited. 

^  Ibid.  628.  24  Rosenheim  v.  Insurance  Co- 

21  Keeler  v.  Insurance  Co.  16  33  Mo.  237. 

Wis,  523.  25  vValsh   v.  Insurance  Co.  32 

N.  Y.  435. 


Chap.  XVI.]  DfSUKAN^CE.  203 

tion  of  fact,  as,  for  instance,  whether  a  change,  such 
as  settmg  up  a  ball  alley  near,  mcreases  the  risk.'^^ 
And  whether  removing  from  a  house,  and  leaving  it 
vacant;"''  although,  in  such  a  case,  it  was  held  that 
although  the  jury  found  that  the  vacation  increased 
the  risk,  yet  the  owner  could  recover,  if  he  used  all 
reasonable  exertions  to  find  another  tenant. 

Where  a  policy  of  insurance  on  a  store  provided 
that  if  the  premises  were  used  to  store,  or  keep  any 
hazardous,  or  extra  hazardous,  articles,  except,  as 
provided  for  in  the  policy,  by  paying  extra  rates, 
the  policy  should  be  void,  and  there  was  especially 
mentioned  in  the  class  of  special  rates,  the  article  of 
camphene,  it  was  held  that  caniphene,  even  to  light 
the  store,  was  prohibited;  and  would  avoid  the  policy, 
except  on  the  payment  of  special  rates  on  express 
agreement.^ 

But  an  insured  may  show  that  the  change  in  the 
use  of  a  building  has  decreased  the  risk."^  And 
where  a  policy  prescribes  that  notice  of  anything 
tending  to  increase  the  risk  shall  be  given  in  a  speci- 
ified  time,  and  alterations  are  made,  and  no  notice 
given,  the  increase  of  risk  is  still  a  question  for  the 
jury.'" 

The  question  whether  a  fire  kiln  for  drying  corn, 
in  connection  with  a  corn-meal  mill,  and  whether  the 
corn-meal  mill  itself  is  an  incident  to  or  an  ordinary 
and  appropi-iate  part  of  the  business  of  a  steam-flour- 

^  Shepherd   v.  Insurance  Co.  ^9  Smith  v.  Insurance  Co.  32 

38  N.  n.  239.  N.  Y.  404. 

^'  Gamwell   v.  Insurance  Co.  ^  Schenck   r.  Insurance   Co. 

12  Cush.  167.  4  Zabr.  (N.  J.)  452. 

2^  Westfall  V.  Insurance  Co. 
2  Keruan  (N.  Y.)  292. 


204  QUESTIONS   OP   LAW   AND   PACT.  [Part  I. 

ing  mill,  were  held  matters  of  fact  for  tlie  jury,  under 
the  charge  that  if  these  were  not  known  or  usual  inci- 
dents, they  avoided  the  policy .^^ 

§  236.  It  has  been  held  that  the  question  of  repairs, 
the  right  to  make  which  is  reserved  to  the  insured,  as 
to  whether  they  were  made  in  reasonable  time,  is  one 
to  be  submitted  to  the  jury,  and  judged  with  regard 
to  all  the  circumstances,  such  as  the  dates  of  various 
notices  given  by  the  parties  to  each  other,  delays 
occasioned  by  sickness  of  workmen,  and  the  peculiar 
situation  or  nature  of  the  property .'^^ 

§  237.  Whether,  when  the  facts  are  found  by  the 
jury,  it  appears  that  a  policy  is  a  wager  policy,  that  is 
for  one  who  has  no  insurable  interest  in  the  life,  and 
who  pays  the  premium,  and  is,  therefore,  void,  is  a 
question  of  law.^^ 

§  238.  Where  goods  are  insured  in  one  building, 
and  it  is  claimed  that  they  were  burned  in  another,  it 
is  for  the  jury  to  say  whether  the  policy  on  the  house 
that  was  burned  covered  the  goods.'^*  And  a  policy 
covering  "  the  property  of  the  insui*ed,  or  held  by  hun 
in  trust,"  has  been  held  to  cover  cloth  held  to  be  man- 
ufactured into  clothing.^^  The  fact  of  holding  belongs 
to  the  jury,  the  character  to  the  court,  under  a  con- 
struction of  the  policy. 

§  239.  Whether,  on  a  question  of  extra  hazard,  a 

21  Washington  Insurance  Co.  ^*  Beatty  v.  Insurance  Co.  52 
v.   Merchants,    ifec,    Insurance     Pa.  St.  456. 

Co.  5  Oliio  St.  476.  S5  Stilwellv.  Staples,  19  N.  Y. 

22  Ilaskins  v.  Insurance  Co.  501,  quoted  in  Insurance  Co.  V. 
5  Gray,  438.  Favorite,  46  111.  2t0. 

S3  Valton  V.  Life  Ins.  Co.  22 
Barb.  35. 


Chap.  XVI.]  INSUKAXCE.  205 

certain  place  is  to  be  regarded  as  a  manufactory,  is 
for  the  jury  to  determine.'^*'  So,  where  an  insurance  is 
of  "bundle  rods,"  and  there  is  a  provision  that  no 
partial  loss  on  "  bar  iron  "  is  to  be  paid,  unless,  &c., 
the  court  cannot  determine,  as  matter  of  law,  whether 
bundles  of  rods  are  bar  iron ;  but  must  leave  the  ques- 
tion to  the  jury.'^^ 

§  240.  Whether  an  insurance  agent  has  authority 
to  vary  terms  is  also  a  question  of  fact.'^^  And  also 
the  extent  of  an  agent's  authority,  where  the  company, 
on  suit,  claims  that  the  agent  had  only  a  restricted 
authority,  and  there  was  no  written  evidence  to  show 
what  it  was.^^  And  the  question  whether  the  books 
of  a  company  furnish  sufficient  data  for  a  correct  as- 
sessment, in  a  mutual  company."**^  And  whether  a 
paper  was  procured  with  reference  to  an  application 
for  insurance,  or  not,  and  whether  procured  by  fraud, 
or  not.*' 

§  241.  Whether  a  note  given  to  a  mutual  company  is 
an  ordinary  open  policy  note,  or  was  given  as  a  premi- 
um note  in  advance,  for  the  security  of  dealers,  under 
a  provision  in  the  charter,  is  a  question  of  fact.^~  And 
whether  a  receipt  of  payment  to  a  company  is  without 
consideration  on  the  part  of  the  insured.''^ 

§  242.  Where  a  part  of  goods  shipped  under  an  in- 

^  Appleby  v.    Insurance  Co.         ^  Insurance     Co.    v.    Uncler- 

45  Barb.  45T.  wood,  3  Gray,  214. 

2'  Evans  v.    Insurance  Co.  6         *^  Knight  v.    Worsted  Co.  2 

R.  I.  53.  Cush.  294. 

^  Sheldon  v.    Insurance  Co.         '^^  Browner  v.  Hill,   1    Sand. 

25  Conn.  221.  (N.  Y.)629. 

^^  Hough  V.  Insurance  Co.  29         ^^  Insurance   Co.  v.  Duffey,  2 

Conn.  23.  Kansas,  356. 


206  QUESTIONS    OF    LAW   AND   FACT.  [Part  I. 

surance  were  discharged,  and  the  remainder  burned 
before  dehvery,  it  was  held  that  the  pohcy  covered 
the  partial  loss;  and  that  what  was  a  delivery  and 
acceptance,  was  for  the  jiiry.*^  Also,  whether  goods 
were  destroyed  in  the  building  covered  by  the  policy ; 
but  if  the  loss  occurs  in  a  building  containing  several 
store-rooms,  and  it  is  uncertain  whether  all  are  in- 
tended, it  is  fatal  to  the  insurers ;  for  the  language  of 
the  policy  is  theirs,  and  will  be  most  strongly  con- 
strued against  them.*'  And  whether  articles  of  mer- 
chandise are  such  as  are  "  usually  kept  in  country 
stores,"  is  for  the  jury.*® 

§  243.  Under  marine  insurance,  when  a  presump- 
tion of  loss  arises,  as  to  a  vessel  on  a  voyage,  is  als-o 
a  question  of  fact.*^ 

§  244.  It  is  held  that  while  a  policy  will,  or  may, 
protect  against  carelessness  or  negligence,  yet  it  can- 
not against  misconduct,  which  is  defined  to  be,  "  a 
transgression  of  some  established  and  definite  rule  of 
action,  where  no  discretion  is  left  except  what  neces- 
sity may  demand ;  while  in  contradistinction,  careless- 
ness, negligence,  and  unskilfulness  are  transgressions 
of  some  established,  but  indefinite  rule  of  action, 
where  some  discretion  is  necessarily  left  to  the  actor." 
And  so,  where  the  master  of  a  boat  used  a  barrel  of 
turpentine  to  increase  the  steam,  and  thereby  the  boat 
was  set  on  fire  and  destroyed,  he  cannot  recover  his 
insurance,  this  being  directly  in  violation  of  an  act  of 

^  Fletcher  v.  Insurance   Co.          ^^  Ibid. 
18  Mo.  197.  47  Clifford  v.  Insurance  Co.  50 

4^  Insurance  Co.  v.  Updegraff,  Me.  209. 
43  Pa.  St.  358. 


CnAP.  XVI.]  IXSURA^CE.  207 

Congress ;  and  it  was  held  that  the  wrongful  act  in 
the  use  of  the  turj)entine  was  for  the  court,  and  not 
for  the  jury;  for  though,  ordinarily,  questions  of  care, 
diligence,  and  skill  are  to  be  decided  by  a  jury,  yet  it 
is  otherwise  where  the  law  defines  the  very  act  to  be 
done,  under  given  circumstances/^ 

§  24:5.  AYliere  one  about  to  employ  a  travelling 
agent  took  out  a  policy  against  his  criminal  defaults, 
the  conditions  of  which  policy  provided  that  it  should 
be  void  unless,  within  six  days  after  any  such  defaults 
should  occur,  the  insurer  should  receive  from  the  in- 
sured a  Avritten  statement  of  all  the  particulars,  so  far 
as  the  insured  could  give  them,  and  after  the  policy 
had  expired,  the  agent  wrote  to  his  employer  acknowl- 
edging the  misapplication  of  some  money  in  his  hands 
occurring  during  the  life  of  the  policy,  the  insured  sent 
no  notice  until  nearly  twenty  days  afterwards,  and  the 
notice  then  merely  stated  that  he  could  not  give  the 
particulars.  He  supplied  these,  however,  within  six 
da}  s  after.  On  an  action  on  the  policy,  the  defendant 
relied  upon  the  delay  as  a  breach  of  condition,  vitiating 
the  policy ;  and  requested  the  judge  to  direct  the  ver- 
dict. But  it  was  submitted  to  the  jury  for  decision; 
and,  on  appeal  it  was  held  correct ;  because  the  agent's 
lettei'  to  his  employer  did  not  clearly  state  whether  the 
embezzlement  occurred  during  the  existence  of  the 
policy,  and  so  did  not  convey  knowledge  of  the  lia- 
bility of  the  insurer,  and  the  delay,  therefore,  was  not 
a  breach  of  the  condition.^^ 

^^  Insurance  Co.  v.  Marsh,  41     surance,  &c.,   Society,  3t  Eng. 
Pa.  St.  393.  L.  &  E.  49. 

^^  Ward  V.  Law  Property  As- 


208  QUESTIONS    OF   LAW   AND   FACT.  [Pakt  I. 

§  246.  A  vessel  was  insured  against  the  perils  of 
"men-of-war,  pirates,  rovers,  arrests,  restraints,  de- 
tainments," &c.,  but  this  was  quahfied  in  the  margin 
of  the  pohcy,  "  warranted  free  from  loss  or  exj.  ense 
arising  from  capture,  seizure,  or  detention,  or  the  con- 
sequences of  any  attempt  thereat "  —  a  warranty  on 
the  part  of  the  insured.  On  the  21st  of  April,  1861, 
lying  at  a  wharf,  in  the  port  of  Norfolk,  Ya.,  for  re- 
pairs, the  vessel  was  seized  by  a  large  band  of  men, 
professing  to  act  by  the  authority  of  the  State  of  Vir- 
ginia, filled  with  stones,  towed  out  into  the  channel, 
amid  the  cheers  of  the  populace,  and  sunk  at  the 
mouth  of  the  channel,  to  prevent  the  passage  of  Avar 
vessels,  and  thus  the  vessel  was  lost  without  redress. 
It  was  held  that,  in  connection  with  the  history  of  the 
times,  it  should  have  been  left  as  a  question  of  fact  to 
the  jury  whether  the  seizure  was  an  act  of  war,  or 
only  of  a  mob.'^'' 

§  247.  How  death  occurred  is  a  question  for  the 
jury,  under  an  accident  policy  providing  that  no  chiim 
should  be  made  except  for  injury  caused  by  outward 
and  visible  means.  The  insured  left  his  lodgings  with 
an  expressed  intention  of  bathing.  Afterwards  his 
clothes  were  found  on  the  steps  of  a  bathing  machine ; 
and  about  six  weeks  after  that,  a  body  was  washed 
ashore  at  a  distant  place  on  the  coast,  which  was  de- 
clared, on  the  inquest,  to  be  the  body  of  the  insured 
by  witnesses;  but  which  the  jury  found  "the  body 
of  a  person  unknown."  It  was  held,  fii'st,  that  if  this 
was  the  body,  and  death  occurred  by  drowning,  it 
was  an  accident  within  the  meaning  of  the  policy;  and, 

50  Swinnerton  V.  Insurance  Co.  37  N.  Y.  177. 


CuAi'.  XVI.]  ESrSUBANCE.  209 

second,  that  it  was  a  question  for  the  jnry  whether  he 
died  from  the  action  of  the  water  or  from  natural 
causes.^^ 

§  248.  Where  a  vessel  is  abandoned  as  a  total  loss, 
it  is  for  the  jury  to  say  whether  the  facts  justified  the 
abandonment;  and  also  the  propriety  of  a  sale  of  the 
cargo  under  the  circumstances.^-  And  whether  the 
ship  arrived  at  her  destination.'^"  "T^^^lere  a  policy  de- 
clares that  the  insured  shall  not  have  a  right  to  aban- 
don, until  it  shall  be  ascertained  that  the  recovery 
and  repairing  of  the  vessel  are  impracticable,  the 
court  has  the  right  to  construe  and  explain  the  con- 
tract to  the  jury.^* 

§  249.  The  question  of  preliminary  proof  of  loss  is 
for  the  court,  on  inspection ;  but  the  authenticity  of 
the  papers  belongs  to  the  jury.^^ 

§  250.  The  question  of  waiver  of  conditions  belongs 
to  the  jury,^''  on  the  ground  that  these  are  for  the 
benefit  of  the  company.^^  And  where  a  policy  pro- 
vided that  it  should  be  avoided  by  a  transfer  of  the 
insured  property,  and  there  was  such  a  transfer,  of 
which  no  notice  was  given  to  the  company,  and  the 
yearly  premiums  were  paid  regularly,  and  receipts 
given  as  usual,  it  was  held  a  question  of  fact  whether 
the  transfer  w^as  known  to  the  company,  under  the  in- 

^1  Trew  t>.  Assurance  Co.   6  ^^  Klein  v.   Insurance  Co.  13 

Hurl.  &  Nor.  843.  Pa.  St.  248. 

^2  Insurance  Co.  v.  Winter,  38  ^  Insurance  Co.  v.   Munday, 

Pa.  St.  185.  5  Cold.  (Tenn.)  551. 

^3  Lindsay  v.  Jauson,  4  Hurl.  ^"  Coursin  v.    Insurance    Co. 

&  Nor.  699.  46  Pa.  St.  823. 

^  Norton  v.  Insurance  Co.  16 
III.  249. 

14 


210  QUESTIONS   OF   LAW  AND   FACT.  [Pakt  I. 

etriiction  that,  if  so,  their  receipt  of  the  annual  pre- 
miums after  the  assignment,  for  four  years,  tended  to 
show  acquiescence,  and  a  waiver  of  the  forfeiture,  and 
therefore  an  estoppel.''^  A  provision  that  no  action 
shall  be  brought  on  a  loss  except  within  one  year 
thereafter  is  valid,  but  may  be  waived  by  the  acts  of 
the  parties,  although  it  is  held  that  a  waiver,  to  be 
binding,  must  be  founded  on  a  valuable  consideration, 
or  the  act  relied  on  as  a  waiver  must  be  such  as  to 
estop  a  party  from  insisting  on  performance  of  con- 
ditions; and  where,  under  a  policy  with  the  above 
condition,  the  insurer  declined  paying  it  on  the  ground 
that  actions  had  been  commenced  against  it  by  other 
parties,  which  were  still  pending,  it  was  held  iiot  to 
amount  to  a  waiver  or  an  estoppel.^" 

The  refusal  of  a  company  to  pay  a  loss,  on  the 
ground  that  they  were  not  on  the  risk,  operates  as  a 
waiver  of  the  preliminary  proof  of  loss."" 

"Where  a  transfer  is  made  without  the  consent  of  the 
company,  and  afterwards  that  consent  is  obtained,  it 
waives  the  forfeiture,  and  revives  the  policy.''^  And 
defects  in  the  original  proofs  are  waived  by  after- 
wards requesting  and  accepting  additional  proofs."- 
If  an  insurance  company,  after  receiving  insufficient 
notice  of  loss,  examine  the  claim,  and  refuse  to  pay  it 
for  other  reasons,  it  waives  the  objection  to  the  no- 
tice.^^    And  in  all  these  cases,  it  is  a  question  for  the 

^  Buckley  v.  Garrett,  47  Pa.         ^^  Keeler  v.  Insurance  Co.  16 

St.  211.  Wis.  523. 

^^  Ripley  v.  Insurance  Co.  30         ^^  Bumstead  v.  Insurance  Co. 

N.  Y.  164.  2  Kernan  (N.  Y.)  98. 

^^  Insurance  Co.  v.  Coates,  14         ^^  Schenck  v.    Insurance  Co. 

Md.  295.  4  Zabr.  (N.  J.)  449. 


CiiAP.  XVII.]     OBSTEUCTION'S    A^TD   NUISANCE.  211 

jury;  as  where  a  T\Titten  notice  is  required  by  the 
l)oUcy/'*  But  where  all  the  facts  and  circumstances 
arc  admitted,  it  is  for  the  court.*'^ 


CHAPTER    XVn. 

Obstructions  axd  Nuisai^ce. 

§  251.  An  obstruction  to  a  water-course  is  anything 
which  diverts  it  from  its  natural  flow.  And  where 
two  persons,  one  above,  and  another  below,  on  a 
stream,  have  a  right  to  use  the  stream,  the  upper 
occupier  must  not  exceed  his  rights,  or  he  will  be 
liable  for  the  obstruction ;  and  where  a  subterranean 
flow  of  water  has  become  so  well  defined  as  to  make 
a  regular  or  constant  stream,  the  owner  of  the  land 
above  has  no  right  to  divert  or  destroy  it  to  the  injury 
of  the  person  below;  and  the  question  for  the  jury  is 
whether  the  obstruction  caused  by  the  defendants 
exceeded  their  rights.^  And  so,  persons  having  a 
charter  to  build  a  bridge  across  a  navigable  stream 
derive  no  right  therefrom  to  obstruct  the  navigation, 
and  such  obstructions,  erected  without  authority  of 
law,  are  nuisances,  and  may  be  abated  as  such  by  a 
private  person,  in  virtue  of  common  right.  And  the 
question  for  the  jury  is,  whether  the  bridge  is  an  ob- 
struction.-  And  where  a  street  is  laid  out  over  the 
waters  of  a  bay,  whether  driving  piles  in  the  street  is 

^  Drake   v.   Insurance  Co.   3  ^  Whetstone    v.   Bowser,    29 

Grant.  (Pa.)  325.  Pa.  St.  65. 

65  Insurance  Co.  v.  Evans,  9  ^  Selman  v.  Wolf,  27  Tex.  69. 
Md.  1. 


212  QUESTIONS    OF    LAW    AND    FACT.  [Part  I. 

an  obstruction  of  its  free  use  by  the  public,  is  for  the 
jury;  and  if  it  is  not  submitted  to  them,  it  is  cause 
for  a  new  trial.'*  The  case  was  one  in  San  Francisco, 
where  Front  Street  is  below  low  water  mark,  and  the 
only  mode  of  rendering  the  street  passable  is  by 
driving  piles  and  planking  over  them,  and  an  injunc- 
tion was  laid  upon  the  city  to  prohibit  it  perpetually 
from  so  doing,  which  injunction  was  dissolved  on 
appeal. 

§  252.  But  where  a  public  street  is  obstructed  by 
cars  standing  across  it,  the  court  is  not  to  refer  to  the 
jury  whether  the  obstruction  was  inevitable,  but  must 
instruct  them,  as  matter  of  law,  that  the  obstruction 
was  unauthorized  and  illegal.^ 

§  253.  Under  the  provision  of  a  charter  allowing 
the  building  of  market  houses  and  repairing  them,  it 
is  lawful  to  obstruct  a  street  for  that  purpose  tempo- 
rarily; and  as  the  owners  of  houses  and  lots  on  a 
market  place  hold  in  subordination  to  the  right  and 
duty  of  the  corporation  to  do  whatever  is  necessary 
for  maintaining  the  market,  they  must  submit  to 
whatever  inconveniences  and  losses  may  result  to 
them  from  a  just  exercise  of  the  corporate  rights,  m 
consideration  of  the  paramount  public  interests;  but 
whether  the  exercise  of  those  rights  is  just  and  rea- 
sonable, and  the  obstructions  are  continued  an  unne- 
cessary time,  are  for  the  jury  to  decide.^ 

§  254.  Wliether  a  tree  in  the  highway  did  obstruct 
its  use  to  the  public,  or  cutting  it  down  was  wanton 

^  San  Francisco  v.  Clark,  1  ^  St.  John  v.  Mayor,  &c.,  of 
Cal.  386.  New  York,  6  Ducr  (N.  Y.)  316. 

4  Ranch  v.  Lloyd,  81  Pa.  St. 
370. 


Chap.  XVII.]     OBSTRUCTIONS   AND    NUISANCE.  213 

and  unnecessary,  so  as  to  subject  the  overseer  who 
did  so  to  an  action  of  trespass^  is  a  question  of  fact.*^ 
For  it  is  held  that  a  conveyance  of  land  bounded  by 
the  highway  carries  the  fee  to  the  middle  of  the  road, 
and  the  owner  is  the  owner  of  the  trees  on  the  high- 
way so  far,  and  can  maintain  an  action  for  damages 
for  wantonly  cutting  them  down. 

§  255.  Where  it  is  alleged  that  a  highway,  by  land 
or  water,  is  so  obstructed  as  to  constitute  a  nuisance, 
this  is  a  question  of  fact.^  An  encroachment  of  a 
fence  upon  a  highway  is  not  a  nuisance,  if  it  create 
no  annoyance.  There  is  a  wide  difference  between  a 
mere  encroachment  and  a  nuisance.  The  latter  is 
something  which  annoys  the  public,  or  individuals. 
An  individual  nuisance  may  be  abated  by  the  party 
aggrieved,  or  he  may  sue  for  his  private  damages. 
"Where  all  the  public  are  alike  incommoded,  an  indict- 
ment is  the  proper  mode  of  proceeding.^ 

"  A  jury  must  determine,  from  all  the  circumstances 
of  each  particular  case,  whether  an  object  permanently 
placed,  temporarily  left,  or  slowly  moving,  in  a  public 
highway,  is,  or  is  not,  a  nuisance ;  and  this  determina- 
tion must  depend  on  their  finding  whether  or  not  the 
given  object,  under  all  the  circmnstances  attending 
its  occupation  of  the  highway,  unnecessarily  obstructs 
the  free  passage  of  the  public  upon  and  over  it;  "  as, 
for  example,  in  the  removal  of  buildings;  and  this, 
too,  depends  much  upon  locality.®  And  it  need  not 
necessarily  be  placed  in  the  travelled  track,  or  even 

6  Winter  v.  Peterson,  4  Zabr.  ^  Griffith  v.  McCullum,  46 
(N.  J.)  524.  Barb.  563. 

7  Blanc  V.  Klumpke,  29  Cal.  ^  Graves  v.  Shattuck,  35  N. 
157.  H.  264. 


214  QUESTIONS   OF   LAW  AND   PACT.  [Paut  I. 

upon  the  road-bed  at  all,  but  may  be  a  nuisance  by 
such  near  vicinity  as  to  make  the  highway  dangerous 
by  frightening  horses;  but  this,  too,  is  subject  to  the 
explanation  of  circumstances  to  be  passed  on  by  the 
jury.^^ 

The  annoyances  incident  to  the  operations  of  a 
railroad  are  not  _/9er  se  a  nuisance,  but  may  become  so 
in  fact;  which  is  a  decision  for  the  jury." 

§  256.  But  where  a  nuisance  complained  of  is  that 
of  taking  public  property,  —  that  is,  property  dedi- 
cated to  the  public,  —  and  appropriating  it  to  private 
use,  it  is  exclusively  a  question  of  law  for  the  court. 
It  is  declared  that  such  an  act  is,  in  law,  a  nuisance, 
for  the  commission  of  which  there  can  be  no  justifi- 
cation.'^ 

§  257.  Where  a  dam  has  been  maintained,  without 
change  of  height,  for  twenty  years,  and,  within  the 
last  ten  years,  lands  have  been  subjected  to  flowage 
thereby  which  were  dry  before,  it  is  error  for  the 
court  to  instruct  the  jury  that  the  presumption  was, 
in  such  case,  that  the  flowage  was  caused  by  some- 
thing besides  the  maintenance  of  the  dam,  l)ut  it 
should  be  left  to  them  whether  the  flowage  was 
caused  by  such  maintenance.''^  And  whether  a  dam 
is  a  nuisance  or  not;'^  as,  where  it  overflows  water 
to  become  stagnant  and  unwholesome,  impairing  the 
health  of  the  community.'^ 

10  Winehip  v.  Enfield,  42  N.  ^3  s^ith  v.  Russ,  1*7  Wis.  229. 
H.  199.  14  Kernan  v.  Edelman,  23  Pa. 

11  Bell  V.  R.  R.  Co.  25  Pa.  St.     St.  146. 

182.  15  Douglass  v.  State,  4  Wis. 

12  State    V.    Woodward,     32     389. 
Vt.  99. 


Chap.  XVIII.]     U:NSKILrUIiI5:ESS  AND   KEGLIGENCE.       215 


CHAPTER    XVirC. 

Unskilfiilness  and  Negligence. 

§  258.  As  to  what  is  a  reasonable  use  or  manage- 
ment, this  is  a  mixed  question  of  fact  and  law ;  as,  for 
example,  if  the  owners  of  a  dam  on  a  water-course 
by  means  of  the  dam  obstruct  the  natural  drainage 
of  then-  neighbor's  land,  even  if  the  land  is  not  on  the 
water-course,  they  are  liable,  unless  the  obstruction 
be  but  a  natural  result  of  the  reasonable  use  and 
management  of  their  water  i^rivileges ;  and  the  ques- 
tion is  for  the  jury,  under  the  instruction  of  the 
court.^  It  is  the  business  of  the  court  to  instruct  the 
jury  as  to  the  degree  of  diligence,  or  sldll  and  care, 
imposed  by  the  law  upon  the  parties  respectively,  and 
then  it  is  for  the  jury  to  apply  the  instruction  to  the 
estimate  of  the  bearing  of  facts  in  the  case.  Thus, 
where  an  explosion  of  a  locomotive  occurred,  and 
thereby  an  employe  lost  his  life,  an  action  in  behalf 
of  his  widow  and  infant  children  was  brought,  and  it 
was  held  that  what  constituted  negligence,  or  ordinary 
care,  or  the  want  of  it,  in  the  deceased,  contributing 
to  his  death,  and  the  reasonable  skill,  care,  and  dili- 
gence exercised  by  the  company  to  relieve  itself  of 
responsibility  for  accidents,  were  for  the  jury;~  al- 

1  Bassett  &  Co.  43  N.  H.  &c.,  3t  Md.  168,  and  cases 
573.  cited. 

2  R.  R.  Co.  V.  State,  for  use, 


216  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

though,  sometunes,  it  is  for  the  court  to  decide  ques- 
tions of  neghgence,  as,  what  is  reasonable  skill  and 
due  care  in  the  treatment  of  a  patient  by  a  physician, 
and  it  is  error  to  leave  this  to  be  decided  by  a  jury;  ^ 
and  this  is  held  to  be  because  the  question  involves 
not  only  reasoning,  but  reasoning  as  to  the  due  execu- 
tion of  work  in  a  learned  science.  To  me  this  does 
not  seem  conclusive,  since  scientific  men,  and  even 
physicians,  may  sometimes  be  placed  on  a  jury,  and 
then  these  would  be  more  competent  than  a  court 
ordinarily  is. 

§  259.  A  mandatory,  that  is,  a  gratuitous  bailee 
receiving  no  hire,  is  only  liable  for  gross  negligence. 
And  whether  such  a  one  used  such  diligence  in  a 
particular  case,  is  a  question  of  fact;  and  it  was  held 
the  court  erred  in  deciding  it  as  a  matter  of  law. 
The  standard  of  judgment  is  to  be  defined  by  the 
com't,  namely;  the  degree  of  diligence  required  is 
such  as  an  ordinarily  prudent  man  would  employ  in 
his  own  business.* 

§  260.  The  question  of  necessary  precaution  some- 
times becomes  distinct  in  the  decision  of  matters  of 
negligence.  And  where  it  relates  to  modes  of  con- 
veyance, there  is  a  distinction  taken  between  such  as 
are  to  go  at  a  high  rate  of  speed,  as  railroad  cars,  and 
at  less  speed,  as  stage  coaches.  And  so,  whether  a 
railroad  company  manufactures  cars  for  itself,  or  pur- 
chases from  others,  it  is  held  responsible  for  the  ut- 
most precaution  in  their  construction.  And  so,  where 
a  passenger  was  injured  by  the  breaking  of  an  axle, 

3  Woodward  v.  Hancock,  Y  *  Fulton  v.  Alexander,  21 
Jones  L.  (N.  C.)  385.  Tex.  150. 


Chap.  XVIII.]      HN-SKILrULNESS   AND   NEGLIGENCE.      217 

through  a  latent  defect  which  could  not  have  been  dis- 
covered by  any  external  examination  whatever,  it  was 
held  that,  notwithstanding  the  car  had  been  made  by 
a  large  manufactory  employing  none  but  skilled  work- 
men, the  railroad  company  was  liable  if  the  defect 
might  have  been  discovered,  durmg  the  manufacture, 
by  means  of  any  test  known  to  men  skilled  in  the 
business.  And  it  is  for  the  jury  to  say  whether  a 
railroad  comj^any  is  guilty  of  negligence  in  not  ascer- 
taining the  utility  of  any  improvement  designed  to 
render  railroad  travel  safe,  and  adopting  such  un- 
provement.^ 

And  so,  where,  in  England,  an  accident  occurred 
through  an  imperfect  welding,  when  a  wheel  was  well 
worn,  although  the  best  known  tests  were  applied 
when  the  wheel  was  new,  and  no  defects  discovered, 
yet,  as  no  tests  were  applied  when  the  wheel  was  old, 
and  the  tire  had  been  re-turned,  by  which  the  defect 
would  probably  have  been  then  discovered,  it  was  held 
that  the  liability  of  the  company  for  negligence  was 
properly  left  to  the  jury.^ 

And,  in  an  action  for  injury  by  fire  caused  by  a 
locomotive,  it  was  proved  that  the  engine  had  none 
of  the  appliances  in  use  to  prevent  sparks.  But,  on 
the  part  of  the  defendants,  it  was  given  in  evidence, 
by.  scientific  witnesses,  that  the  engine  was  so  con- 
structed as  to  render  such  safeguards  needless,  to  pre- 
vent the  emission- of  sparks.  And  the  judge  left  it  to 
the  jury  to  say  whether  there  had  been  negligence  on 

^  liegeman  v.  R.  R.  1  Kernan         ^  Manser  v.  R.  R.  6  Ilurl.  & 
(N.  Y.)  24, —  Marvin,  J.,  dis-     Nor,  899. 
sentirig. 


218  QUESTIONS    OF    LAW   AND   FACT.  [Part  I. 

the  part  of  the  company,  either  by  using  an  improp- 
erly constructed  engine,  or  by  using  improperly  such 
an  enghie  as  the  defendants'  witnesses  testified  to  as 
safe  m  its  construction/  And  the  general  rule  is  laid 
down  thus:  "A  railroad  company  is  liable  in  damages 
for  an  injury  resulting  to  any  person  lawfully  using 
its  road,  from  its  neglect  to  introduce  any  improve- 
ment in  its  apparatus  which  it  knows  to  have  been 
tested  and  found  materially  to  contribute  to  safety, 
and  the  adoption  of  which  is  within  its  power,  so  as 
to  be  reasonably  practicable,"  —  as,  for  example,  frog 
and  guard  rails  at  switches.^ 

Where  a  railroad  company  allowed  a  ditch  to  be- 
come filled  up,  it  was  remarked  by  the  court,  on  ap- 
peal, in  an  action  of  damages,  "We  apprehend  that 
a  railroad  may,  as  a  question  of  prudence  and  care,  as 
well  be  required  to  have  regard  to  the  prevention  of 
damages  to  a  land-owner  by  the  accumulation  of  sur- 
face water  merely,  as  of  a  running  stream,  when  the 
geographical  formation  and  surrounding  cii'cum- 
stances  are  such  as  to  make  it  apparent  to  reasonable 
men  that  such  precautions  are  necessar}^;  and  that, 
ordinarily,  what  would  be  a  reasonable  performance 
of  their  duty,  under  a  given  state  of  circumstances, 
would  be  a  question  of  fact,  and  not  a  question  of  law 
for  the  court."  ® 

And  though  it  is  held,  on  the  one  hand,  that  a  ripa- 
rian proprietor,  whose  land  has  been  gradually  washed 
away  by  a  change  of  current  caused  by  necessary 

'  Fremantle  r.  R.  R.  10  C.  B.  ^  Waterman  v.  R.  R.  30  Vt. 

(N.  S.)  89.  615. 

8  Smith  V.  R.  R.  19N.Y.133. 


Chap.  XVIII.]     UNSKILPULNESS   A^B   NEGLIGENCE.      219 

erections  made  in  a  stream  above,  has  no  claim  for 
damages,  whether  the  erections  had  been  made  in  a 
careless  and  unskilful  manner,  or  not,  yet  one  who  has 
had  the  water  set  back  on  him  from  below  by  such 
erections,  has  such  claim  for  damage,  —  the  latter 
being  a  direct  encroachment,  and  the  former  merely 
consequential  and  indirect.'"  And  it  is  held  that  a 
railroad  is  not  liable  for  consequential  damages  in 
locating  or  constructing  their  road,  and  that  it  would 
be  error  to  leave  it  as  a  question  of  fact  to  the  jury 
whether  the  company  could,  without  unreasonable 
expense  or  undue  injury,  have  so  changed  the  site  of 
their  track  as  to  have  avoided  such  damage.'^ 

But  where  the  charter  requires  a  railroad  company 
to  purchase  a  turnpike  track,  and  assume  the  liabil- 
ities of  the  turnpike  corporation,  before  running  cars, 
and  gave  them  the  right  to  use,  in  part,  the  turnpike 
track,  then  it  is  held  that,  if  using  the  pike,  or  bring- 
ing the  railroad  track  into  close  proximity  with  it, 
will  make  it  dangerous  to  persons  with  teams  on  the 
turnpike,  and  so  impair  the  usefulness  thereof  to  the 
public,  the  railroad  company  is  bound  to  remove 
the  two  roads  from  each  other,  or  put  a  screen  be- 
tween them ;  and  if  they  fail  to  do  so,  and  a  horse  is 
frightened  to  death  by  a  passing  train,  the  company 
are  liable ;  and  that  the  questions  whether  the  com- 
pany have  been  guilty  of  want  of  care  or  foresight  in 
constructing  their  road  and  the  turnjiike  too  near  to- 
gether, and  without  a  screen,  and  whether  this  was 

10  Henry  v.  R.  R.  30  Vt.  640.         "  R.  H.v.  Young,  32  Pa  St 

182. 


220  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

the  proximate  cause  of  the  damage  complained  of,  are 
questions  of  fact.'~ 

So  the  precaution  of  providing  cars  with  safety 
beams,  to  prevent  damage  to  passengers  by  the  break- 
ing of  axles,  may  be  required;  and  it  is  proper  to 
submit  it  to  the  jury  to  say  whether,  taking  into  con- 
sideration the  vigilance  required  of  common  carriers 
of  passengers,  the  publicity  of  the  invention,  and  its 
prior  use,  the  company  were  or  were  not  guilty  of 
negligence  in  not  ascertaining  the  utility  and  neces- 
sity of  the  invention,  and  availing  themselves  of  it.^^ 

§  261.  And,  on  the  same  principle  of  needful  pre- 
caution in  construction,  it  is  held  that  highways  are 
to  be  made  safe  by  all  the  guards  available.  So,  in  an 
action  against  a  turnpike  company,  by  one  who  got 
out  of  the  path  in  a  dark  night,  and  fell  into  a  ditch, 
it  appeared  the  company  had  put  up  no  railing  on  the 
sides  of  the  road  at  that  place;  but  they  interposed 
the  defence  that  a  pile  of  boards  in  an  adjoining  lum- 
ber yard  was  sufficient  as  a  barrier,  and  that  the 
plaintiif 's  intoxication  caused  the  injury.  The  court 
submitted  to  the  jury  the  condition  of  the  road,  the 
need  of  a  railing  at  that  place,  the  sufficiency  of  the 
pile  of  lumber,  and  the  intoxication  of  the  plaintiif  as 
the  cause  of  the  injury.  The  jury  found  thereon  for . 
the  defendants;  and  it  was  held  properly  submitted 
to  them.''* 

And  it  is  a  question  of  fact  whether  a  highway  was 
safe,  or  was  obstructed,  or  out  of  repair,  to  be  deter- 

12  Moshier  v.  R.R.  8  Barb.  431.  ^^  Weeks  v.  Turnpike  Co.  20 

13  negeman  v.  R.  R.  16  Barb       Conn.  138. 
355. 


Chap.  XVIII.]      TXN^SKILrUI.N^SS   AND    NEGLIGENCE.      221 

mined  on  a  view  of  all  the  circnmstanees,  in  reference 
to  the  nature  and  extent  of  the  defect,  the  character 
of  the  g-roimd,  amount  and  kind  of  travel,  ability  of 
the  town,  and  all  particulars  tending  to  show  whether 
the  highway  was  reasonably  safe  and  convenient,  and 
whether  or  not  it  ought  to  have  been  previously  re- 
paired ;  also  whether,  without  fault  or  negligence,  the 
obstruction  came  by  inevitable  accident,  and  whether 
the  town  had  notice  of  it  in  time  to  have  removed  it 
before  the  accident  occurred.'^ 

And  a  town  is  liable  for  an  injury  to  an  elephant 
passing  on  a  highway,  if  the  injury  occur  by  reason 
of  a  defect,  and  if,  in  the  opinion  of  the  jury,  the  ani- 
mal was  one  which  it  was  reasonably  proper  to  take 
over  a  highway  kept  for  the  reasonable  use  of  the 
public.^'"' 

And  whether  a  sidewalk  in  the  street  of  a  city  oi* 
town  is  safe  and  suitable  is  a  question  of  fact.^" 

§  262.  Precautions  against  steamboat  collisions 
have  been  held,  in  Missouri,  however,  to  be  questions 
for  the  court;  as,  for  instance,  what  is  a  proper  pre- 
cautionary measure  in  itself,  uninfluenced  by  rule, 
usage,  or  custom.^^ 

§  263.  Comparative  negligence  is  usually  for  the 
jury,  to  find  whether  it  contributed  to  the  injury;  as, 
for  example,  where  fire  is  communicated  to  weeds  and 
dry  grass,  on  and  near  a  railroad  track,  the  compara- 
tive negligence  of  the  plaintiff  and  the  company,  in 

15  Johnson    v.   Haverhill,    35         ^7  cjty  of  St.  Paul  v.  Keeley, 

N.  n.  80  ;  Bigelow  v.  Rutland,  8  Minn.  158. 
4  Cush.  24T.  18  Rogers  v.  McCune,  19  Mo, 

1^  Gregory  v.  Inh?ibitants,  &o.  568. 
14  Gray,  246. 


222  QUESTIONS    OF    LAW   AND   FACT.  [Part  I. 

regard  to  the  accumulation  of  the  combustible  mate- 
rials^ Aud  so,  where  a  sewer  was  being  constructed 
in  a  public  street,  and  no  guard  light  or  other  special 
notice  being  set,  but  the  plaintiff  knew  of  the  con- 
struction.'-^ "Whether  due  care  was  used  by  a  pas- 
senger in  alighting  on  a  platform  at  a  station,  and  by 
the  company  in  affording  proper  facilities  for  alight- 
ing there ; '-''  and  whether  a  man  found  killed  on  a 
track  was  lawfully  there  at  the  time  of  the  accident, 
and  using  due  care ; "  and  whether  one  attempting 
to  cross  a  track  before  the  train  was  free  from  culpa- 
ble negligence ;  ~^  and  whether  one  in  the  employ  of  a 
railroad  company,  who,  Iniowing  of  a  defect  in  the 
road  track,  yet  continued  in  such  service,  and  at 
length  was  injured  by  reason  of  that  defect,  was 
guilty  of  negligence  therein;^*  and  whether  a  natural 
protector  used  due  care  to  prevent  a  child  from  wan- 
dering in  the  way  of  danger ;  ~^  and  whether  leaving 
open  a  door  into  which  sparks  flew  from  an  engine 
and  burned  the  building,  was  culpable  negligence  on 
the  part  of  the  owner ;  ^'^  and  whether  one  who  has 
suffered  injury  on  a  highway  resulting  in  death  was 
himself  negligent,^^  —  are  all  within  the  province  of 
the  jury. 

So,  likewise,  where  a  boy  of  sixteen  or  seventeen 

19  R.  R.  V.  Nunn,  51  111.  V9.  24  g^ow    v.    R.    R.    8    Allen 

20  Bateman   v.  Ruth,   3  Daly     (Mass.)  443. 

(N.  Y.)  380.  25  Manf^am  v.  City  R.  R.  36 

21  Dclaniatyr  v.  R.  R.  Co.  24     Barb.  236. 

Wis.  582.  26  Fei-o  v.  R.  R.  22  N.  Y.  210. 

22  R.  R.  Co.  V.  Hall,  61  Pa.          27  ii[\\   ^^  Town  of  New  Ha- 
St.  361.  ven,  37  Conn.  507. 

23  Ernst  V.  R.  R.  35  N.  Y  20. 


Chap.  XVIII]      XJ^SKILFULN ESS   AND   NICGLIGENCE.      223 

years  of  age,  running  to  a  fire  at  night,  beside  a  fire 
engine,  stepped  into  a  hole  in  the  road-bed  of  a  rail- 
road, and  was  in  consequence  run  over  by  the  engine 
and  injured  so  that  his  leg  had  to  be  amputated,  it 
was  held  that,  though  the  defect  in  the  road-bed  was 
not  caused  by  any  act  of  the  company,  yet  it  was 
their  duty  to  repair  it,  if  they  knew  of  it,  and  knew  it 
was  dangerous;  and  also  that  the  jury, in  determining 
whether  the  boy's  negligence  or  misconduct  contrib- 
uted to  the  injury,  were  to  consider  his  age,  intelli- 
gence, and  strength,  and  judge  his  conduct  by  that 
of  boys  of  like  age,  strength,  and  intelligence,  in  gen- 
eral ;  and  consider,  also,  whether  it  was  common  for 
boys,  on  an  alarm  of  fii*e,  to  run  along  with  an  engine 
in  such  a  manner .~^ 

And  where  an  action  was  brought  for  the  death  of 
a  child,  seven  years  of  age,  by  means  of  a  car  running 
over  it,  it  was  held  that  negligence  is  not,  as  a  matter 
of  law,  to  be  presumed  from  the  mere  fact  of  such 
a  child  being  alone  and  unattended  in  the  street. 
Wliether  the  permission  of  the  parents  is  negligence, 
is  for  the  jury  to  sa}^;  and  where  it  is  alleged  that  a 
car,  by  the  carelessness  of  a  servant  of  the  company, 
was  driven  over  a  child,  and  caused  its  death  by  the 
negligence  of  the  company  and  its  agents,  it  is  held 
that,  under  the  pleadings,  it  might  be  shown  that  the 
car  Avas  deficient  in  its  construction,  as  well  as  that 
the  agent  was  careless  in  its  management."" 

The  general  rule,  sustained  by  the  weight  of  au- 
thority both  here  and  in  England,  —  ]^ew  York  and 

28  R.  11.  V.  Fielding,  48  Pa.*  29  Qldfield  v.  R.  R.  3  E.  D. 
St.  321.  Smith  (N.Y.)  106. 


224  QUESTIONS    OF   LAW   AND   PACT.  [Part  I. 

Massachusetts  dissenting,  however, — is,  that  a  higlier 
degree  of  care  is  requisite  in  the  case  of  a  child  than 
an  aduh,  the  child  being  less  capable  of  taking  care 
of  himself.^"  And,  in  the  same  way,  it  has  been  held 
that  persons  in  jiositions  of  great  peril  are  not  re- 
quired to  have  all  the  presence  of  mind  and  care  of  a 
prudent  man  in  oi-dinary  circumstances,  —  the  law 
making  due  allowances  for  them,  and  leaving  the 
manner  of  their  conduct  to  the  jury ;  and  in  such  case 
the  court  has  no  right  to  determine  the  question  of 
negligence.^^  And  so,  a  passenger  in  peril  by  the 
fault  of  the  carrier  may  leap  from  a  coach,  if  the  act 
is  not  rash ;  while  it  is  held  that  carriers  are  respon- 
sible for  even  slight  neglect,  and  if  they  know,  or 
might  have  known,  of  danger  in  using  a  coach  in  a 
particular  manner,  even  by  the  exercise  only  of  ex- 
traordinary attention,  and  so  the  danger  have  been 
avoided,  they  are  held  responsible.^^ 

And  where  a  passenger  was  standing  on  the  plat- 
form, notwithstanding  on  the  inside  of  the  car  was  a 
notice  prohibiting  this,  and  was  injured  while  the 
train  was  running  over  an  unfinished  part  of  the  road, 
where  the  cross-ties  were  too  far  apart  and  insuffi- 
ciently spiked,  and  the  accident  took  place  by  the 
breaking  of  a  cleat  at  the  end  of  one  of  the  rails, 
while  none  of  the  other  passengers,  being  inside  the 
cars,  was  injured  thereby,  the  defence  was  set  up  that 
it  was  the  plaintiff's  fault  in  standing  on  the  platform 
while  the  cars  were  in  motion.     Verdict  for  plaintiff 

30  Smith  V.  O'Connor,  48  Pa.  ^i  r  r_  ^  Yarwood,  IT  Til. 
St.  220,  and  cases  cited.  519. 

32  Frink  v.  Potter,  17  HI.  408 


CiiAP.  XVIIL]     TIN'SKILFULNESS   AND    NEGI-IGENCE.      225 

for  ten  thousand  dollars;  new  trial  refused;  the 
court  holding  that  the  questions  whether  plaintiff  had 
laiowledge  of  the  prohibitory  notice,  and,if  so,  whether, 
under  the  circumstances,  his  own  act  contributed  to 
the  injury,  so  as  to  exonerate  the  cornpany,  who  were 
clearly  guilty  of  negligence,  were  for  the  jury.  Held, 
no  error;  and  that  proof  of  injury  to  a  passenger  is 
prima  facie  evidence  of  neglect.^^ 

And,  at  an  inn,  in  the  absence  of  direct  evidence 
of  negligence  on  the  part  of  a  guest  contributing  to 
his  loss,  the  jury  may  find  whether  the  key  of  the 
door  could  be  turned  from  the  outside,  whether  the 
guest  used  the  fastenings  of  the  door,  or,  if  he  locked 
it,  w^hether  it  was  negligence  not  to  bolt  it,  or  to  leave 
the  small  fan-light  over  the  door  unfastened,  and 
whether  he  had  notice  of  a  printed  limitation  of  the 
proprietor's  liability  at  the  head  of  the  register,  so  as 
to  make  it  a  contract  by  signing  his  name ;  ^^  and,  in 
short,  whether  the  guest  has  exercised  ordinary  pru- 
dent care.^^ 

^Yliether  it  is  properly  incident  to  the  business  of 
raising  and  lowering  merchandise  by  an  elevator,  for 
a  man  to  go  up  and  down  "vvith  it,  is  a  question  of 
fact,  in  an  action  for  damages  in  the  falling  of  an  ele- 
vator; and,  also,  whether  the  injured  man  was  care- 
less in  omitting  to  observe  whether  the  engine  was  in 
operation  at  the  time  of  the  accident,  so  that  the  ele- 
vator could  not  fall."^® 

33  Zemp  V.  R.  R.  9  Rich.  (S.  35  Hadley  v.  Upshaw,  27  Tox. 
C.)  86.  550. 

34  Ramalcy  v.  Leland,  6  Rob-  36  Stewart  v.  Harvard  Col- 
ertson  (N.  Y.)  365.  lege,   12  Allen,  65. 

15 


226  QUESTIONS    OF   LAW   AKD   FACT.  [Part  1- 

And  where  cattle  are  destroyed  from  want  of  cattle 
guards  to  a  railroad,  which  the  company  are  under 
obligation  to  build,  the  jury  may  find  whether  the 
owner  was  ordinarily  careful  not  to  let  them  run  at 
large.^"  And  so,  where  an  accident  occurred  for  want 
of  repairs  in  a  fence,  by  the  company,  there  must  be 
a  direct,  and  not  merely  a  remote,  connection  with 
the  injury  suffered.^®  And  the  jury  may  determine 
whether  an  owner  is  culpably  negligent  in  allowing 
his  cattle  to  remain  in  a  field  where  railroad  fences 
are  out  of  repair."^^ 

Wliere  a  beast  on  a  railroad  would  not  be  driven 
off  by  a  person,  nor  by  whistling  of  the  train,  and  the 
engineer  did  what  he  could  to  arrest  the  progress  of 
the  train,  but  vainly,  so  that  the  animal  was  Idlled, 
there  was  no  liability  to  the  company.*" 

Where  goods  are  destroyed  by  fire,  or  are  stolen 
after  notice  to  a  consignee,  the  railroad  company 
keeping  them  as  warehousemen  for  hire,  the  jury  are 
to  find  whether  the  company  exercised  ordmary  care 
and  diligence.*' 

Wliere  plaintiff  was  run  over  in  the  street,  it  is  held 
that,  unless  the  proof  of  negligence  on  his  own  part 
is  so  strong  that  the  court  would  set  aside  a  verdict 
in  his  favor  as  against  the  weight  of  evidence,  it  is 
not  proper  to  take  that  question  from  the  jury.*- 

§  264.   As  to  positive  or  absolute  negligence,  it  is 

37  Bulkloy  V.  R.  R.  27  Conn.  «  Dimmick  v.  R.  R.  18  Wis. 
486.  474. 

38  Holden  v.  R.  R.  30  Vt.  301.         ^2  Williams    v.    O'Keefe,    9 

39  Poler  V.  R  R.  16  N.  Y.  479.     Bosw.  (N.  Y.)  637. 
^  Montj^omcry   v.    R.    R.    6 

Jones  L.  (N.  C.)  464. 


Chap.  XVIII.]      UKSKILFULNESS    AND   NEGLIGENCE.      227 

held  that  the  jury  are  to  find  the  fact  from  all  the  cir- 
cumstances, and  it  is  held,  accordingly,  that  where  an 
agricultural  society  had  a  race  track,  and  plaintiff  was 
injured  thereon  in  running,  it  was  bound  to  use  the 
highest  care  to  avoid  accident  within  the  reach  of 
human  foresight.'*"' 

§  265.  And  the  general  rule  is,  where  action  is 
brought  for  a  negligent  injury,  where  the  action  of 
both  parties  must  have  concurred  in  producing  it,  that 
the  burden  of  proof  is  on  the  plaintiff,  to  show  that 
he  was  not  himself  guilty  of  negligence ;  and  if  there 
is  no  such  evidence,  the  court  may  direct  a  verdict 
for  the  defendant.  But  if  the  question  of  negligence 
is  connected  with  a  disputed  state  of  facts,  or  facts 
from  which,  if  not  disputed,  different  minds  may  hon- 
estly draw  different  conclusions,  the  whole  matter 
must  be  left  to  the  jury;  and  to  warrant  the  court  in 
instructing  the  jury  that  the  plaintiff  iis  guilty  of  neg- 
ligence, the  case  must  be  such  as  to  allow  no  other 
inference  from  the  evidence.**  If  there  is  any  evi- 
dence of  negligence  against  the  defendant,  the  case 
must  go  to  the  jury.*^ 

In  Pennsylvania,  it  is  held  that  what  facts  consti- 
tute negligence,  is  usually  a  question  of  law;  but 
whether  a  particular  negligence  contributed  to  an 
accident,  is  a  question  of  fact.*"  In  Wisconsin,  that 
negligence  is,  in  general,  a  conclusion  from  the  facts 
in  evidence,  to  be  drawn  by  the  jury,  under  instruc- 

43  Goodale  v.  Agric.  Soc.  102  ^  Commonwealth  v.  R.  R.  10 

Mass.  401.                 '  Allen,  189. 

4*  R.  R.^.  Van  Steinburg-,  17  ^  R.  R.  v.  Armstrong,  52  Pa. 

Mich.    120,   and  many  authori-  St.  286. 
ties. 


228  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

tions  from  the  court,  and  is  always  so  where  the  facts 
or  the  conchi.sions  therefrom  rest  in  doubt.^' 

In  CaUfornia,  the  jury  must  find  the  neg"h<^ence  of 
plaintiff  not  to  have  been  remotely,  but  directly,  con- 
tributory to  the  accident.  And  whether  due  diligence 
or  negligence,  in  a  particular  case,  is  shown,  is  for 
the  jury.^^     And,  doubtless,  this  is  the  general  rule. 

The  rule  is  defined,  in  Maryland,  to  be,  that  while 
a  railroad  is  not  under  obligation  to  use  every  pos- 
sible contrivance  which  human  ingenuity  might  pro- 
vide, yet  it  should  be  vigilant  in  making  use  of  every 
reasonable  safeguard  which  the  nature  of  its  business 
will  admit,  to  avoid  interfering  with  others  in  like 
pursuit  of  lawful  avocations;  and  if  a  party  receive 
injury  by  the  negligence  of  a  company,  but  it  can  be 
shown  that  his  own  negligence  directly  contributed, 
he  cannot  recover,  although  the  company,  by  greater 
diligence,  might  have  prevented  the  injury.  And 
even  in  the  passage  of  locomotives  through  the 
thoroughfares  of  a  city,  a  company  is  only  obliged  to 
employ  such  reasonable  care  and  diligence  as  ordinary 
prudence  would  suggest  and  require.  But  if  the 
company  do  not  confoim  to  the  city  ordinances  pro- 
viding certain  safeguards  in  regard  to  its  operations, 
it  is  not  in  the  lawful  pursuit  of  its  business,  and  is 
responsible  for  all  injiuy,  if  the  injured  party  is  not 
in  fault.  And  what  constitutes  negligence  by  the 
party  injured,  or  proper  diligence  by  the  raih'oad 
company,  is   a  question  of  fact.^^     Also,  as  to  what 

4'  Langhoff  v.  R.  R.  19  Wis.  ^^  R.  R.  v.  The  Stjte,  39  Md. 
489.  259. 

48  Richmond  v.  R.  R.  18  Cal. 
358. 


Chap.  XVIIL]     UXSKILrULNESS   AND    NEGLIGENCE.        229 

degree  of  contributory  negligence  will  exonerate  the 
company,  the  rule  is,  that  if  an  injured  person  so  far 
contributes  to  the  injury  as  that,  had  he  exercised 
ordinary  caution,  the  accident  would  not  have  oc- 
curred, there  is  no  right  to  recover.^'' 

In  Illinois,  it  is  held  that  negligence  is  a  question 
of  laAV,  when  it  consists  in  the  omission  of  a  dut}'^ 
imposed  by  positive  requirement  of  law;  as  where  a 
statute  requires  signaling,  and  slacking  speed  at 
crossings ;  and  herein  the  jury  are  to  determme  where 
the  accident  happened,  and  what  was  the  rate  of 
speed;  and  where  there  is  no  statutory  requirement 
as  to  signaling,  whether  an  omission  to  give  a  signal 
is  negligence  or  not.^^ 

In  Maine,  it  is  held  that  whether  a  signaling  is 
reasonable,  and  within  the  rule  of  ordinary  care,  is 
for  the  jury,  without  the  opinions  of  experts,  which 
are  held  incompetent.^^ 

In  "Wisconsin,  it  has  been  decided  that  a  jury  may 
decide  whether  the  damaged  condition  of  goods  trans- 
ported resulted  from  negligence  of  the  company.®^ 

In  Kentucky,  likewise,  with  regard  to  animals  trans- 
ported; and  it  is  held  that,  although  a  common  carrier 
is  liable  for  the  safety  of  all  animals  carried  by  him, 
except  from  damage  by  public  enemies,  or  the  act  of 
God,  yet  the  rule  is  subject  to  some  restrictions,  as  in 
injuries  from  the  animal's  own  viciousness,  or  that  of 
other  animals  shipped  with  it.^ 

In  New  York,  it  is  held  that  as  the  law  does  not 

50  Ibid.  420.  53Congar  v.  U.  R.    11   Wis. 

51  R.  R.  V.  Foster,  43  111.  416.     477. 

62  Hill  V.  R.  R.  55  Me.  439.  ^  Hall  v.  Renfro,  3  Met.  52. 


230  QUESTIONS   OF   LAW   AND    FACT.  [Part  I. 

require  extreme  care,  or  exact  diligence,  in  passing  on 
a  public  thoroughfare,  although  a  railroad  may  cross 
it  on  the  same  surface,  it  does  not  deprive  a  party 
injured  of  redress,  although  he  was  guilty  of  slight 
neglect  contributing  to  the  injury.^'*  Contradictory 
testimony  must  go  to  the  jury;  or  doubtful.^''  Omis- 
sion to  ring  a  bell  at  a  crossing,  as  the  law  requires, 
is  negligence;  and  if  one  is  injured  in  the  crossing, 
although  careless  in  some  degree,  it  is  for  the  jury  to 
say  whether  the  sound  of  the  bell  would  probably 
have  attracted  the  plaintiff's  notice,  and  so  enabled 
him  to  avoid  the  danger.^^ 

In  Pennsylvania,  it  is  held  immaterial  upon  which 
party  the  burden  of  proof  is  thrown  by  the  court;  it 
is  for  the  jury  to  determine,  under  the  circumstances, 
whether  the  plaintiff  is  free  from  inexcusable  neg- 
ligence.^^ 

In  Missouri,  it  is  held  that  negligence  and  unsldl- 
fulness  are  matters  of  fact ;  and  that  the  court  cannot 
direct  a  jury  that  particular  facts  show,  or  do  not 
show,  negligence.^^ 

In  Massachusetts,  it  is  held  that  if  the  whole  evi- 
dence on  which  a  plaintiff's  case  rests  shows  that  he 
did  not  use  due  care,  the  court  may  rightfully  instruct 
the  jury  that  the  action  cannot  be  maintained."*' 

In  Xew  York,  it  is  held  that  an  injured  limb  may 
be  sho^vn  to  the  jury  in  evidence."^ 

^  McGrath  v.  R.  R.  32  Barb.  ^^  Huelsenkamp   v.  R.  R.  34 

144.  Mo.  45. 

^  Bernhardt    v.  R.    R.    Ibid.  ^o  Qahagan  v.  R.  R.  1   Allen, 

165.  187. 

5'  Ernst  V.  R.  R.  Ibid.  159.  ei  Mulhado  v.  R.  R.  30  N.  Y. 

^  R.  R.  V.  McTighe,  48  Pa.  310. 
St.  319. 


Chap.  XVIII.]     HN^SKILFULNESS   AND   NEGLIGENCE.        231 

In  Pennsylvania,  it  is  held  that  a  railroad  company 
cannot  impute  negligence  to  an  injured  plaintiff,  if  the 
negligence  charged  was  itself  the  result  of  an  omis- 
sion of  duty  on  the  part  of  the  company,  and  this  is 
for  the  jury.*'^ 

If  horses  are  frightened  at  the  necessary  noises 
of  railroads,  the  company  is  not  responsible.*'^  So 
held  in  Delaware;  and  this,  of  course,  is  the  general 
rule. 

In  Virginia,  it  is  held  that  the  duty  of  a  railroad 
company  to  employ  the  utmost  care  and  diligence  in 
guarding  their  road  against  obstructions  on  the  track, 
is  clearly  embraced  in  its  warranty  to  carry  pas- 
sengers safely,  so  far  as  human  care  and  foresight 
can  go.^"* 

So,  in  England,  with  the  management  of  switches.^ 
So  in  Maryland.^^ 

In  Missouri,  it  is  decided  that  the  question  of  neg- 
ligence is  to  be  considered  by  the  jury  in  a  case  where 
a  disorderly  intoxicated  person  was  put  off  the  train; 
and  also  whether  the  intoxication  contributed  to  the 
injury.'''' 

§  266.  As  to  negligence  in  seamanship,  it  was  held^ 
in  an  action  against  the  owner  of  a  transport  for 
damage  by  collision,  that  the  court  was  right  in  leav- 
ing to  the  jury  the  question  whether  the  master  was 


62  R.  R.  V.  Ogier,   35  Pa.  St.  ^5  Birkett  v.  R.  R.  4  Hurl.  & 
72.  Nor.  729. 

63  Burton    v.   R.   R.  4    Han.  ^6  r    r    ^   Worthington,  21 
(Del.)  252.  Md.  275. 

^  R.  R.  V.  Sanger,  15  Gratt.  ^7  Meyer    v.   R.    R.   40   Mo. 

230.  151. 


232  QUESTIONS   OF   LAW   AND   FACT.  [Part  I. 

not  guilty  of  negligent  seamanship  in  not  dropping 
an  anchor,  on  the  Avind  changing/'^  And  where  a 
vessel  sunk  at  the  wharf  with  a  load  of  coal  which 
had  been  seized  by  the  sheriff  under  a  writ  of  replevin, 
and  put  in  charge  of  a  keeper,  it  was  held  to  be  for 
the  jur}-  to  say  whether  the  sheriff  was  guilty  of  neg- 
ligence in  not  takmg  proper  precautions  for  the  secu- 
rity of  the  vessel.^^  And  it  seems  that  a  sheriff  hav- 
ing property  in  custody  is  held  to  more  than  ordinary 
diligence. 

The  court  cannot  determine,  as  matter  of  law,  the 
probability  of  a  collision  being  produced  between 
vessels  which  depended  on  the  sufficiency  of  a  cable, 
and  the  currents  and  counter  currents  of  a  river,  at 
the  point  where  the  collision  occurred.  And  where 
vessels  are  in  a  situation  of  peril  from  passing  steam- 
boats, it  is  for  the  jury  to  find  whether  the  owners 
were  negligent  in  the  matter,  if  vessels  are  sunk 
thereby;  and  it  is  held  that  as  steamboats  have  extra 
means  of  avoiding  injury,  they  are  to  be  held  to  the 
exercise  of  greater  caution  and  exertions."'^  And  so 
steamboats,  as  well  as  railroads,  must  provide  all 
available  precautions  against  conununicating  fires. 
And,  in  California,  it  is  held  to  be  for  the  coiu-t  to 
decide  what  facts  and  circumstances  constitute  evi- 
dence of  carelessness,  and  for  the  jury  to  determine 
the  weight  of  those  facts  and  circmnstances."^  And 
the  principles  that,  at  common  law,  apply  in  cases  of 

6^  Ilodgkinson  v.  Fernie,  40  ™  Holmes  v.  Watson,  29  Pa. 
Eng.  L.  &  E.  306.  St.  457. 

^^  Moore  v.  Westervelt,  21  '^  Gerke  v.  Navigation  Co.  9 
N.  Y    105.  Cal.  255. 


Chap.  XVIII.]     UXSKZLFULNESS   AND   NEGLIGENCE.        233 

collisions  of  carriages  on  highways  apply  to  collisions 
on  navigable  waters/^ 

Negligence  m  the  use  of  appropriate  means  for 
removing  a  sunk  vessel,  where  the  owner  has  not 
abandoned  it,  but  attempts  to  raise  it,  is  for  the 
jury,  if  there  is  any  conflict  in  the  testimony; 
otherwise,  for  the  court  to  determine,  and  direct  the 
verdict."^ 

§  267.  It  is  for  the  jury  to  determine  whether  a 
town  has  unreasonably  neglected  to  fit  up  a  new 
highway,  or  alter  one  already  established;"^  and  m 
not  remedymg  a  defective  sidewalk;  '^  and  in  not 
maintaining  a  railing  along  an  embanked  part  of 
highway.'*'  And  whether  a  town  has  used  reasonable 
care  in  constructing  roads,  and  whether  these  are 
safe.'^  And  whether  a  party  is  guilty  of  contribu- 
tory negligence  in  crossing  a  bridge  in  a  dark  night 
without  a  light."^  And  so,  whether  a  person  in- 
jm'cd  by  falling  into  the  passage-way  of  a  private 
cellar  in  the  street  was  guilty  of  contributory  neg- 
ligence."^ 

§  268.  In  an  action  for  damages  in  not  caring  for 
and  extinguishing  a  pile  of  coal  on  fire,  whereby  a 
warehouse  and  contents  were  burned  up,  it  was  held 
that  the  jury  were  to  determine  whether  the  defend- 

"2  Sawyer  v.  Steamboat  Co.  "^  Williams  v.  Town  of  Clin- 

46  Me.  402.  ton,  28  Conn.  266. 

"i^  Taylor  v.  Insurance  Co.  9  ""^  Hall   v.  City  of  Lowell,  10 

Barb.  369.  Cash.  260. 

'*  State  V.  Canterbury,  40  N.  '^  Swift  v.  Town  of  Newbury, 

H.  315.  36  Vt.  355. 

'^  Hall  V.  Manchester,  40  Me.  '^  Beatty  v.  Gilmore,  16  Pa. 

415.  St.  463. 


234  QUESTIONS    OF   LAW   AND   TACT.  [Part  I. 

ants  had  used  such  care  as  reasonable,  prudent  men 
would  have  exercised,  or  whether  there  was  mutual 
negligence.®^ 

§  269.  The  question  of  diligence  or  negligence  also 
arises  in  the  collection  of  promissory  notes,  as  due 
diligence  of  a  notary  in  notifying  the  maker,  or  to 
ascertain  his  residence;®'  or  notice  of  dishonor ;  ^~  and 
are  for  the  jury,  if  the  facts  are  in  dispute;  otherwise, 
for  the  court.®^ 

"Whether  due  diligence  was  used  to  make  demand 
of  the  maker  so  as  to  charge  the  indorser,  is  for  the 
jury,  if  there  is  conflicting  evidence,  under  instruc- 
tions from  the  court  as  to  what  due  diligence  is.®* 
And  so,  as  to  collecting  the  proceeds  of  a  sale,®^  or  a 
draft  by  assignee;®'''  they  are  for  the  court,  unless 
evidence  is  doubtful.®^ 

But  whether  an  agent  is  guilty  of  negligence  in 
not  instituting  a  suit  for  his  principal,  has  been  held 
to  be  for  the  jury.®®  And  also  by  a  creditor  against 
the  principal  m  a  note ;  ®^  or  due  diligence  in  a  collec- 
tion by  a  bank.®*' 

In  Missouri,  diligence  in  giving  notice  to  an  indors- 
ee McCully   V.  Clarke,  40  Pa.         86  Brooks    v.   Elgin,    6    Gill 
St.  406.  (Md.)  254. 

81  Staylor  v.  Ball,  24  Md.  197 ;  ®'  Bell  v.  Bank,  7  Gill  (Md.) 
Adams  v.  Leland,  5  Barb.  411.       217. 

82  Linville  v.  Welch,  29  Mo.  88  Browu  v.  Clayton,  12  Ga. 
203.  578. 

83  Walker  v.  Stetson,  14  Ohio  89  Brown  v.  Brooks,  25  Pa. 
St.  89.                                                 St.  211. 

84  Wyman  v.  Adams,  12  Cush.  ^  Ayrault  v.  Bank,  6  Rob. 
212.  (N.  Y.)  350. 

85  Ewalt  V.  Harding,  16  Md. 
161. 


Chap.  XVIII.J      U^SKILFULNESS   AND   NEGLIGENCE.      235 

er  is  for  the  court."^  "Whether  factors  are  hable  for 
not  insurmg  is  for  the  jury.°- 

§  270.  Where  all  the  facts  are  agreed,  it  is  a  ques- 
tion of  law  whether  an  insured  has  used  reasonable 
diligence  in  communicating  a  subsequent  insurance  to 
the  first  insurer s.^'^ 

§  271.  Wliether,  in  an  action  of  escape,  the  officer 
was  guilty  of  negligence  in  making  an  arrest  of  a 
debtor  under  a  capias,  or  in  returning  the  wi'it  in  a 
reasonable  time,  is  held  to  be  a  question  of  fact  for 
the  jury.^ 

§  272.  WHiether  one  is  guilty  of  such  negligence  in 
not  examinmg  a  railway  lease,  as  to  defeat  his  right 
to  recover  in  an  action  for  deceit,  is  for  the  jury.^^ 

§  273.  Whethei'  miners  prosecuted  their  claims 
with  due  diligence  as  against  parties  subsequently 
attempting  to  appropriate  their  water,  is  also  a  ques- 
tion of  fact.^^ 

§  274.  In  the  foreclosure  of  a  chattel  mortgage,  it 
is  for  the  court  to  determine  what  time,  under  the 
circumstances,  is  a  reasonable  time,  and  for  the  jury 
to  say  whether  it  was  foreclosed  in  that  time.^' 

§  275.  Where  one  stood  by  and  witnessed  a  sale  of 
land  to  which  he  had  an  equitable  claim,  whether  he 
used  due  diligence  to  ascertam  his  title  or  not,  is  for 
the  jury,  in  a  matter  of  estoppel.®* 

^1  Sanderson    v.  Reinstadler,  ^^  Clark  v.  Rankin,  46  Barb. 

31  Mo.  485.  5H. 

^2  Huguenin    v.    Legare,    11  ^  Weaver    v.    Lake    Co.    15 

Rich.  (S.  C.)  215.  Cal.  273. 

93  Kimball  v.  Insurance  Co.  8  ^'  Wooley  v.  Fry,  30  111.  162. 
Gray,  35.  ^8  odlin  v.  Gove,  41    N.   H. 

94  Hart  V.  Stevenson,  25  Conn.  473. 
606. 


236  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

§  276.  And  whether  one  was  guilty  of  negligence 
in  not  slaughtering  hogs,  so  that  afterwards,  on  a 
change  of  weather,  the  meat  spoiled,  is  a  matter  of 
fact.^^ 


CHAPTER  XIX. 

Feaud. 

§  277.  There  is  a  distinction  between  fraud  in 
law  and  fraud  in  fact,  in  this,  that  when  certain  in- 
dicia are  established,  the  presence  of  fraud  is  deter- 
minable by  the  court  as  a  matter  of  law,  regardless 
of  any  evil  intent  of  the  parties  concerned;  while 
fraud  in  fact  depends  on  the  fraudulent  intent  of 
those  connected  with  a  transaction ;  and  the  facts  es- 
tablishing this  are  for  the  jury.  So  where,  in  a  sale 
of  personal  property,  the  possession  does  not  follow 
and  accompany  the  transfer,  it  is,  in  general,  a  fraud 
in  law,  without  regard  to  the  intention  of  the  parties, 
and  is  a  question  of  law  for  the  court,  and  not  for  the 
jury.  So,  where  a  merchant  failed,  and  purchased 
goods  on  credit  as  the  agent  of  his  wife,  which  goods 
were  not  at  any  time  paid  for  out  of  her  means. 
Afterwards,  she  sold  the  .  store  lease,  fixtures,  and 
goods  to  her  brother,  a  journe^^man  blacksmith,  who 
paid  no  money  thereon,  but  merely  gave  notes,  and  a 
guaranty  that  he  would  pay  certain  debts  for  her. 

^  Ferguson  v.  Adm'r,  1  Met.  84. 


Chap.  XIX.]  FEAUD.  237 

And  there  was  no  inventory  made,  nor  any  change  of 
signs  or  clerks,  except  of  one  clerk;  no  outward 
change  of  possession.  The  merchant  remained  in  the 
store  as  usual,  though  professedly  acting  as  the  agenV 
of  his  wife's  brother,  who  went  to  Texas  shortly  after 
the  sale  to  him.  The  goods  were  levied  upon  by  the 
sheriff  as  the  husband's  propertj^,  and  it  was  held,  on 
trial  of  the  right  of  property,  that  the  ownership  was 
in  him,  his  wife  not  having  paid  for  the  goods  from 
her  own  means ;  and  that  the  sale  to  her  brother  was 
a  case  of  retained  possession,  without  visible  change, 
and  therefore  fraudulent  and  void  —  a  fraud  in  law, 
even  if  the  formal  sale  was  honest  in  intent,  and  in 
pa^Tuent  of  the  purchase  money;  and  that  the  court 
should  so  have  instructed  the  jury,  leaving  them  to 
determine  the  facts  as  to  possession,  if  disputed.^ 

§  278.  Fraud,  however,  is  not  presumed,  but  must 
be  distinctly  and  clearly  made  out;  and  cannot  be  in- 
ferred merely  from  equivocal  circumstances,  nor  on 
slight  evidence ;  nor  is  it  to  be  considered  as  a  single 
fact,  but  a  conclusion  drawn  from  circumstances. 
And  in  matters  of  conveyances,  these  are  not  void  for 
fraud  because  their  effect  is  to  hinder,  delay,  and  ob- 
struct creditors,  but  it  must  be  made  with  that  intent, 
to  avoid  it  as  fraudulent,  ^or  can  the  actual  secret 
intent  of  a  grantor,  however  bad,  affect  a  hona  fide 
purchaser,  without  notice." 

And  so,  where  one  executes  a  gift,  and  afterwards 
becomes  insolvent,  this  event  will  not  avoid  the  gift, 
unless  it  is  shown  that,  at  the  time  the  gift  was  made, 

1  Milne  v.  Henry,  40  Pa.  St.  2  Hollister  v.  Loud,  2  Mich. 
35T.  312,  and  cases  cited. 


238  QUESTIONS  or  law  a:nd  pact.        [Part  i. 

there  was  in  the  mind  of  the  donor  an  intention  there- 
by to  defraud  future  creditors.^ 

And  if,  after  delivery,  the  property  is  subsequently 
returned  to  the  vendor,  although  it  may  be  a  circum- 
stance tending  to  show  only  a  colorable  transaction, 
yet  the  law  will  not  presume  fraud  thereon,  but  the 
fact  of  fraud  must  be  proved  by  direct  or  circumstan- 
tial evidence.*  The  fraudulent  intent,  however,  may 
be  shown  from  separate  and  mdependent  acts  and 
declarations  of  the  parties.^  And  where  there  is  a 
voluntary  conveyance  for  natural  love  and  affection, 
the  jury  are  to  determine  whether  it  is  in  good  faith 
or  not,  from  the  reasonableness  of  the  provision,  the 
amount  of  the  giver's  indebtedness,  the  nature  and 
sufficiency  of  the  fund  remaining  to  discharge  that 
indebtedness,  and  other  circumstances  revealing  mo- 
tives." 

And  although  there  are  cases  where  it  is  said  the 
law  presumes  fraud  from  certain  acts,  yet  fraud  in 
fact  is  only  the  conclusion  of  the  law  upon  facts 
proved;  and  a  court  cannot  charge  a  jury  thereon 
that  one  is  presumed  to  intend  the  natural  conse- 
quences of  his  own  acts.  Fraud,  and  fraudulent 
intent,  accordmg  to  the  overwhelming  Aveight  of 
authority,  are  always  for  the  jury.''  And  so,  where 
fraudulent  intent  is  to  be  inferred  from  facts  and  cir- 
cumstances which,  in  legal  contemplation,  are  mere 
badges  of  fraud,  and  not  fraud  jper  se,  these  must  be 

3  Creed  v.  Bank,  1  Ohio  St.  9.  «  Pomeroy  v.  Bailey,  43  N.  H. 

*  Wright  V.  Grover,  27  111.  430.  122. 

^  Pomeroy  v.  Bailey,  43  N.  II.  ">  Wakeman     v.    Dalley,    44 

119.  Barb.  498. 


Chap.  XIX.]  FRAUD.  239 

submitted  to  the  jury.^  It  seems  that,  in  ^N'orth  Caro- 
Hna,  intent  of  fraud  is  held  to  be  always  for  the  court.® 
But  where  a  provision  in  a  deed  may  be  for  the  ben- 
efit of  creditors,  so  that  a  deed  is  not  fraudulent  on 
its  face,  it  is  held  for  the  jury,^*^  which  corresponds 
with  the  general  rule.  And  fraud  in  fact  belongs  to 
the  jury,  even  though  connected  with  fraud  in  law; 
and  in  such  case  it  is  held  error  for  a  court  to  direct 
a  verdict,  however  plain  a  case  may  be.^^ 

§  279.  It  is  held  that  where  the  law  declares  cer- 
tain facts  to  be  conclusive  evidence  of  fraud,  a  verdict 
against  such  conclusion  will  be  set  aside ;  but  where 
it  declares  them  to  be  merely  presumptive  evidence 
of  fraud,  the  jury  may  find  against  the  presumption.'- 

Although  fraud  is  for  the  jury,  yet  it  is  a  question 
of  law  whether  the  evidence  tends,  in  any  respect,  to 
make  out  fraud." 

And  where  a  chattel  mortgage  contains  no  unlaw- 
ful provisions,  it  can  only  be  avoided  by  proof  of 
fraud  in  fact,  which  is  exclusively  a  question  for  the 
jury.  If  it  were  void  on  its  face,  it  would  be  the  duty 
of  the  court  to  pronounce  it  so ;  but  the  court  cannot 
look  at  facts  outside  of  the  instrument,  and  treat  them, 
when  found  by  the  jury,  as  a  part  of  the  instrument 
itself,  or  instruct  the  jury  if  they  find  such  facts,  the 
instrument  is  void,  where  the  statute  refers  the  ques- 

8  Van  Hok  v.'  Walton,  28  Harper,  44  Pa.  St.  206 ;  De 
Tex.  72.  Leon  v.  White,  9  Tex.  598. 

9  Foster  v.  Woodfin,  11  Ired.  ^^  Billings  v.  Billings,  2  Cal 
339.  113. 

^°  Young v.Booe, Hired. 347.  ^^  Gage  V.  Parker,  25  Barb. 

^^  Elirisman  v.  Roberts,  68  145 ;  Erwin  u.  Voorhees,  26 
Pa.    St.    311 ;     Huntzinger    v.     Barb.   130. 


240  QUESTIONS   01*  LAW  AND   FACT.  [Pakt  I. 

tion  of  fraud  to  the  jury  in  such  matters.'^  It  is 
otherwise  at  common  law,  excepting  the  most  ancient 
common  law/^ 

Where  there  is  no  conflict  in  the  evidence,  the  ques- 
tion of  change  of  possession  is  one  of  law.  Where 
the  testimony  is  conflicting,  and  the  facts  uncertain, 
the  jury  find  the  facts ;  and  the  court  are  to  say  Avhat 
facts  constitute  a  change  of  possession.^^ 

§  280.  These  principles,  so  stated  in  a  general  way, 
we  will  now  proceed  to  apply  somewhat  specifically. 
And,  first,  in  regard  to  fraudulent  sales  of  personal 
property. 

In  a  public  sale  under  judicial  process,  where  the 
only  bid  offered  is  by  the  crier  of  the  sale,  under  the 
direction  of  the  officer,  and  the  bid  was  greatly  below 
the  actual  value,  said  to  be  in  consequence  of  mis- 
representations on  his  part,  which  deterred  others 
from  bidding,  the  fraudulent  intent  of  the  buyer  it 
was  held  could  not  be  decided  by  the  court  as  matter 
of  law,  but  must  go  to  the  jury.^'  And  whether,  by 
any  means,  bids  were  chilled  at  a  sheriff''s  sale.'®  And 
so,  whether  the  employment,  by  an  owner,  of  a  by- 
bidder  is  in  good  faith,  to  avoid  a  sacrifice,  or  for  a 
fraudulent  purpose  of  enhancing  the  price,  by  pre- 
tended competition,  is  matter  of  fact.^^ 

Also,  w^here  a  minor  purchases,  partly  on  credit, 
from  a  firm  in  straitened  circumstances,  this  does  not 

^^  Bagg  V.  Jerome,  t  Mich  ^"  Brotherline    v.   Swires,  48 

157.  Pa.  St.  69. 

15  Gibson  v.  Love,  4  Fla.  211.  ^^  Manning  v.  Dove,  10  Rich. 

16  Burrows    v.    Stebbins,    26  (S.  C.)  401. 

Vt.  663.  19  Ro3'nolcls  v.  Dechaums,  24 

Tex.  177. 


Chap.  XIX.]  FRAUD.  241 

constitute  fraud  in  laAV,  and  avoid  the  sale  as  to  cred- 
itors of  the  firm.  Under  such  circumstances,  it  is  for 
a  jury  to  inquire  into  the  fraud,  if  any  exists.^" 

And  also  whether,  where  a  third  party  furnished 
the  consideration  in  the  sale,  it  was  a  fraudulent 
transaction.'^ 

Where  goods  are  purchased  with  the  fraudulent 
intent  not  to  pay  for  them,  the  purchaser  does  not 
acquire  title ;  which  intent  may  be  deduced  from  acts 
as  well  as  words;  but  where  the  purchaser,  though 
greatly  embarrassed,  hopes  to  retrieve  himself,  and 
has  an  honest  intention  to  pay  for  the  goods,  title 
passes.  And  so,  where,  after  a  course  of  dealing  by 
sales  on  credit  for  several  years,  the  seller  required 
the  buyer  to  furnish  business  paper,  who  promised  to 
do  so,  to  be  delivered  whenever  the  seller  required, 
and  so  received  the  goods,  and  within  three  wrecks 
failed,  and  made  an  assignment  for  a  large  amount, 
having  demands  due  him  only  to  about  half  the  sum, 
and  nothing  against  the  merchants  whose  paper  he 
had  promised  to  procure,  except  a  few  open  accounts, 
which  he  had  pledged  to  creditors  along  with  the 
other  claims,  it  was  held  that  the  court  had  no  right 
to  dismiss  the  complaint,  but  should  have  submitted 
to  a  jury  the  apparent  circumstances  of  fraud." 

And  whether  a  sale  is  fraudulently  made  to  evade 
an  execution,  is  also  matter  of  fact;~^  and  although 
such  sale  is  secret,  and  no  means  taken  to  apprise  the 

20  Matthews  v.  Rice,  31  N.  22  ^\^^  ^_  Phillips,  8  Bosw. 
Y.  460.  (N.  Y.)60T. 

21  Foster  v.  Berkey,  8  Minn,  23  Beakers  v.  Temple,  41  Pa. 
357.  St.  242. 

16 


242  QUESTIONS    OF    LAW   AND    FACT.  [Part  I. 

public  of  it,  these  circumstances  do  not  make  the  sale 
fraudulent  in  law;  but,  as  facts,  they  throw  suspicion 
on  the  transaction  to  be  considered  by  the  jury.-* 

And  whether  a  sale  was  induced  by  fraudulent 
representations  by  a  third  party  as  to  the  credit  of  a 
purchaser.^ 

Fraudulent  representations  by  the  agent  of  a  mining 
company,  in  selling  the  stock  of  the  corporation,  and 
whether  the  purchaser  was  thereby  deceived,  are  for 
the  jury.-®  And  where  one  was  induced  to  sell  his 
farm  in  exchange  for  worthless  railroad  stock,  by 
means  of  false  representations,  it  was  held  that  all 
matters  tending  to  show  that  the  statements  of  the 
defendant  as  to  the  value  of  the  stock,  and  the  condi- 
tion of  the  company,  were  falsely  made,  and  that  the 
plaintiff,  though  having  some  knowledge  of  the  char- 
acter and  responsibility  of  the  company,  was  governed 
by  the  representations  of  the  defendant,  who  was  a 
financial  agent  of  the  corporation,  and  that  represen- 
tations were  made  by  the  defendant,  on  the  same  day 
and  only  a  short  time  before  the  agreement  with  the 
plaintiff,  designed  to  influence  and  actually  influencing 
the  plaintiff  in  making  the  contract,  are  all  questions 
for  the  jury  to  decide  in  the  case.^^ 

And  so,  in  an  action  for  fraud  in  the  sale  of  patent 
rights,  it  was  held  that  it  was  for  the  jury  to  decide 
upon  the  connection  and  effects  of  an  extended  con- 
versation between  the  parties,  at  the  time  of  the  sale.'^ 

24  Warner  t;.  Norton,  20  How.  26  Qj-uj^p  y  Mining  Co.  7 
458.  Gratt.  (Va.)  369. 

25  Zabriskie  v.  Smith,  3  Ker-  27  Yates  v.  Alden,  41  Barb, 
nan  (N.  Y.)  329.  175. 

28  Peck  V.  Bacon,  18  Conn.  887. 


Chap.  XIX.]  PKAUD.  243 

"Wliere  a  cow  was  purchased  to  improve  the  breed 
of  cattle,  and  it  afterwards  appeared  there  was  a 
latent  defect  in  the  animal  disqualifying  her  for  this 
purpose,  and  there  was  some  evidence  that  this  was 
known  to  the  vendors  at  the  time  of  the  sale,  and  the 
coiiirt,  on  the  trial,  was  asked  to  charge  the  jury  that, 
if  they  found  these  facts,  the  defendants  would  be 
guilty  of  fraud,  it  was  held  that  the  court  properly 
refused  to  do  so,  since  this  was  asking  of  the  court  a 
conclusion  of  fact,  and  not  of  law.^^ 

§  281.  The  possession,  by  the  vendor,  of  personal 
property  after  the  sale  thereof,  is  held  to  be  a  badge 
of  fraud,  although  it  is  not  so  as  to  real  estate,  of 
which  the  transfer  of  title  may  be,  and  usually  is, 
otherwise  made  public.  And  it  is  held  to  be  for  the 
court,  as  fraudulent  in  law,'^°  and  yielding  a  presump- 
tion which  requires  explanation  to  remove  it,^'  although 
not  so  as  to  real  estate ;  ^^  and  although  there  is  an 
exception  also  in  the  case  of  property  remaining  with 
a  defendant  in  execution,  of  which  a  jury  is  the  judge 
of  the  fact.^^  And  also  held,  that  where  a  corporation 
puts  its  mills  and  stock  into  the  hands  of  persons  who 
had  made  large  advances  in  money,  they  to  run  it  as 
special  owners,  and  in  the  name  of  the  corporation 
until  the  advances  were  paid,  the  question  whether 
there  has  been  such  a  retention  of  the  goods  as  to  be 
fraudulent  against  creditors,  by  the  corporation,  is  for 
the  jury.^* 

29  Hadley  v.  Importing  Co.  13  ^  Steward  v.  Thomas,  35  Mo. 
Ohio  St.  505.  208. 

30  Dewart  v.  Clement,  48  Pa.  ^3  Neece  v.  Haley,  23  111.  416. 
St.  413.  3*  Howe  v.  Keeler,  27  Conn. 

31  Gibson  v.  Hill,  21  Tex.  225.  553. 


244  QUESTIONS    OP    LAW   AND   FACT.  [Part  I. 

Where  the  facts  are  disputed,  the  matter  is  for  the 
jury  to  decide  whether  there  were  acts  of  ownership 
and  change  of  possession;  otherwise  for  the  court  to 
state,  as  law,  whether  the  facts  constitute  a  continued 
and  exchisive  possession  in  the  vendee."^ 

An  apparent  constructive  dehvery,  as  of  a  lot  of 
timher  growing,  is  for  the  jury  to  say  whether  there 
is  such  a  delivery  and  change  of  possession  as  the 
nature  of  the  property  is  capable  of.*^"  And  where 
there  is  any  evidence  of  good  faith,  it  seems  it  is  for 
the  jury  to  decide.^'  And  a  party  continuing  in  the 
possession  of  goods  sold  must  prove  good  faith  affirm- 
atively, on  account  of  the  presumption  of  the  law 
against  him.^^ 

Though  actual  possession  be  taken,  yet  if  the  sale 
was  made  to  defraud  creditors,  it  is  void  as  to  them, 
and  this  is  for  the  jury;  as  if  a  son  in  failing  circum- 
stances transfer  his  property  to  his  father.^^ 

In  Michigan,  and  probably  elsewhere,  the  statute 
gives  the  question  of  fraud  as  to  possession  to  the 

•  40 

Where  the  validity  of  a  sale  depends  on  whether  it 
was  made  with  intent  to  hinder,  delay,  or  defraud 
creditors,  the  court  is  bound  to  submit  it  to  the  jury."*' 
And  the  words  "  hinder  and  delay "  are  to  be  taken  in 
their  legal  or  technical,  and  not  their  literal,  sense. 

S5  Hodgkins  v.  Hook,  23  Cal  ^8  Randall  v.  Parker,  3  Sand. 

581.  (N.  Y.)69. 

36  Chase   v.  Ralston,   30   Pa.  so  Forsyth    v.    Matthews,    14 

St.  539.  Pa.  St.  100. 

^"^  Thompson  v.  Blanchard,  4  ^^  Jackson  ik  Dean,  1  Doug. 

Corns.  (N.  Y.)  303.  519. 

41  Peckv.Crouse,46  Barb.  151. 


Chap.  XIX.]  FRAUD.  245 

The  statute  refers  only  to  an  improper  or  illegal  hin- 
deranee,  or  delay,  not  to  such  as  is  reasonable  and 
fair  in  the  exercise  of  the  well-established  right  to 
prefer  creditors;  so  that  a  conveyance  made  to  pre- 
vent creditors  from  sacrificing  the  property  of  a  debtor 
by  a  sale,  or  to  prevent  a  race  of  diligence  among 
one's  creditors  for  his  property,  by  appropriating  it  to 
preferred  creditors,  is  not  within  the  statute.*^ 

§  282.  Fraud  in  regard  to  chattel  mortgages  is 
subject  to  the  same  rules,  in  the  main,  but  has,  of 
course,  some  distinctive  features. 

The  fact  that  a  note  and  chattel  mortgage  were 
given  for  a  larger  sum  than  was  actually  due,  is  not 
conclusive  evidence  of  fraud,  since  it  might  have  been 
60  by  mistake ;  and  it  is  a  question  for  the  jury  whether 
it  was  done  in  good  faith,  or  in  fraud  of  creditors. ^^ 

But  where  a  retail  store  was  sold,  and  chattel  mort- 
gage taken  on  the  entire  stock  by  schedule,  and  the 
mortgage  provided  also  that  all  articles  of  a  like 
nature,  which  might  be  in  the  store  at  the  time  of  de- 
fault in  the  condition,  should  be  subject  to  it,  and 
that  the  mortgagor  should  continue  in  possession,  but 
should  not  sell  on  credit,  it  was  held  that  the  mort- 
gage was  fraudulent  against  creditors,  on  its  face, 
and  should  not  therefore  be  submitted  to  a  jury.** 
And  to  permit  mortgaged  property  to  remain  in  the 
hands  of  the  mortgagor,  contrary  to  the  terms  of  the 
mortgage  deed,  is  held  fraudulent  per  se,  and  admits 
no  explanation.*^    So,  where  a  mortgage,  besides  per- 

42  Hefner  v.  Metcalf,  1  Head.  ^  Edgell  v.  Hart,  5  Selden 
(Tenn.)  519.  (N.  Y.)213. 

43  Wooley  V.  Fry,  30  111.  158.  ^^  p^^k  v.  Staats,  24  111.  643. 


246  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

mitting  the  mortgagor  to  remain  in  possession,  allows 
him  to  sell  the  goods  as  his  own,  it  is  fraudulent  in 
law,  and  void  as  to  creditors.^° 

In  l^ew  York,  however,  possession  by  mortgagor 
is  explainable/^  And  in  !N^ew  Jersey."*^  And  there 
may  be  a  few  other  exceptions. 

The  fact  that  goods  mortgaged  are  partly  perish- 
able, does  not  necessarily  avoid  the  mortgage;  but 
the  character  and  condition  of  the  goods  are  matters 
to  be  considered  by  the  jury  in  determining  whether 
a  mortgage  is  fraudulent.*^ 

Iowa  seems  to  be  an  exception  to  the  adoption  of 
the  rule  that  a  mortgage  which  gives  the  mortgagor 
the  right  not  only  of  retaining  possession,  but  also  of 
disposing  of  the  mortgaged  property  as  his  own,  is 
j)er  se  void.^'' 

A  mortgage  without  delivery  is  held,  in  ^ew  York, 
to  be  adjudged  void  as  a  matter  of  law,  by  the  court, 
until  some  evidence  of  good  faith  is  given ;  and  then 
the  presumption  of  law  is  sutficiently  overcome  to 
justify  sending  it  to  the  jury.^^ 

Where  the  mortgage  is  fair  on  the  face,  but  is  af- 
fected with  a  secret  trust  in  favor  of  the  grantor,  as 
such  secret  trust  can  only  be  shown  by  exti'insic  evi- 
dence, the  existence  of  fraud,  or  an  intent  to  hinder, 
delay,  or  defraud  creditors,  is  matter  of  fact  for  the 
jury.'- 

*^  Griswold     v.    Sheldon,    4  ^  Torbertv. Hayden.ll  Towa, 

Corns.  (N.  Y.)  587.  438.     See  also  Ibid.  573. 

47  Ibid.  ^1  Allen  v.  Cowan,  28  Barb. 

48  Miller  y.Pancoast,  5  Dutch.  105. 

250.  ^2  Zeigler  v.  Maddox,  26  Mo. 

49  Googins    V.     Gilmore,    47     577. 
Me.   13. 


Chap.  XIX.]  TRAUD.  247 

§  283.  Also  fraudulent  conveyances  of  land  are  a 
very  extended  branch  of  the  law.  The  principles, 
however,  falling  within  the  limits  of  the  present  in- 
vestigation are  not  very  numerous,  or  prolix  in  state- 
ment, so  far  as  adjudications  run.  The  determination 
of  the  fraudulent  intent  is  almost  always  for  the  jury, 
since  it  can  seldom  be  determined  on  the  face  of  the 
instrument;  and  the  question  of  fraud,  therefore,  is 
dependent  on  extrinsic  evidence,  which,  in  almost 
every  instance,  carries  a  matter  to  the  jury.  Even 
where  fraud  is'  a  mixed  question  of  law  and  fact,  the 
jury  can  be  instructed  in  the  law.^^ 

A  voluntary  conveyance  is  not  ])er  se  fraudulent; 
and  whether  it  be  so  is  a  question  of  fact  depending 
on  the  intention  of  the  parties.^*  Where,  however, 
the  legal  effect  of  a  voluntary  conveyance  is  to  hinder 
or  delay  creditors,  it  has  been  held,  in  Indiana,  that 
the  court  will  pronounce  it  void.^^  When  there  is  no 
dispute  as  to  the  facts,  the  court,  of  course,  will  pro- 
nounce upon  their  bearing  on  the  interpretation  of 
the  instrument.^^  Otherwise,  the  hona  fides  of  a  vol- 
untary conveyance  is  for  the  jury.^^  There  is  no  legal 
presumption  of  fraud  in  connection  therewith ;  ^^  but 
this  depends  upon  the  intent;  and  the  court  has  no 
right  to  assume  that  such  an  intent  is  proved,  even  if 
the  evidence  strongly  tends  in  that  direction.^^ 

^  McLaughlin    v.    Bank,    7  ^^  Pomeroy  v.  Bailey,  43  N. 

How.  220.  H.  119. 

^  Dygert  v.  Remerschnider,  ^^  Babcock  v.  Eckler,  24  N. 

32N.Y.  63T.  Y.  625. 

55  Ewing  V.  Gray,  12  Ind.  70.  ^^  Gardner  v.  Boothe,  31  Ala. 

^  Gerrish  v.  Mace,  9  Gray,  1 89. 
236. 


248  QUESTIONS   OF   LAW  AND   FACT.  [Part  I 

The  question  of  the  validity  of  a  voluntary  convey- 
ance to  a  wife  arises  between  her  and  her  husband's 
creditors  only,  and  is  held  a  question  of  fact/'*^  To 
invalidate  such  a  deed  as  against  creditors,  it  is  not 
needful  that  a  debtor  believe  hmiself  insolvent,  or  in 
reality  be  insolvent,  at  the  time,  if  his  solvency  is  con- 
tingent upon  the  stability  of  the  market  in  relation  to 
his  business.  So,  where,  on  the  first  of  May,  a  corn 
merchant  largely  indebted,  but  not  insolvent,  nor  ap- 
prehending insolvency,  bought  some  land,  and  took 
the  deed  to  his  wife,  and  on  the  15th  of  June  bought 
a  lot  of  corn,  giving  a  check  therefor  post-dated  the 
24th,  and  on  the  16th  he  and  his  wife  conveyed  the 
land  to  their  son-in-law,  in  trust  for  her,  and  re- 
mainder to  her  heirs,  and  on  the  23d  he  suspended 
payment  in  consequence  of  tidings  from  Europe  of  a 
fall  in  the  price  of  corn,  it  was  held  that  the  trust 
deed,  and  also  the  original  conveyance  to  the  wife, 
were  fraudulent,  and  void  as  against  the  seller  of  the 
corn,  and  holder  of  the  check.''' 

Where  a  tliird  party  pays  the  consideration  for  the 
purchase  of  land,  his  existing  creditors  can  sell  the 
land  under  execution  against  him,  although  no  trust 
results  to  himself  for  his  own  benefit;  the  payment 
being  regarded  as  a  fraud  on  them,  where  he  was 
under  no  legal  or  moral  obligation  to  furnish  the 
money.  But  where  the  consideration  is  paid  under  a 
moral  obligation  to  the  grantee  in  the  deed,  no  trust 
results  in  favor  of  creditors.  And  this  is  for  the  jury 
to  decide.''- 

60 Holman V.Martin, 12 Ind. 554.         ^2  ^ait   v.   Day,    4    Denio 
61  Carpenter  v.  Roe,  10  N.  Y.     (N.  Y.)445. 
230. 


Chap.  XIX.]  FEAUD.  249 

There  may  be  a  fraudulent  foreclosure  of  a  mort- 
gage; as  where  there  is  an  understanding  that  the 
mortgagor  shall  be  allowed  to  redeem  notwithstanding 
the  foreclosure,  and  under  the  arrangement  the  mort- 
gagee conveys  to  a  trustee  for  the  benefit  of  the 
mortgagor's  wife  and  children,  and  in  certain  contin- 
gency for  his  own  benefit,  it  was  held  void  as  to  cred- 
itors.^'^ And  where  there  are  any  facts  and  circum- 
stances from  which  a  jury  can  draw  an  inference  that 
a  conveyance  is  made  to  hinder,  delay,  or  defraud 
creditors,  they  are  to  determine  the  character  of  the 
instrument;  although  it  is  held  not  error,  in  such 
case,  for  the  judge  below  to  express  an  opinion  on 
the  facts,  provided  it  be  not  in  the  form  of  a  binding 
instruction.^ 

§  284.  Fraudulent  misrepresentations  in  the  sale 
of  land,  as,  for  example,  as  to  its  quality,  are  held 
matter  of  fact.  Thus,  in  a  case  of  the  kind,  where 
there  was  evidence  of  an  agreement  on  the  part  of 
the  defendant,  in  an  action  on  a  bond,  to  waive  in- 
spection of  the  land  and  take  the  risk  of  its  quality,  it 
was  held  not  error  to  instruct  the  jury  that  if  they 
found  fraudulent  misrepresentations  of  the  plaintijff 
concerning  the  land,  and  that  the  defendant  had  not 
waived  inspection  at  his  own  risk,  they  should  find 
for  the  defendant,  —  the  questions  of  fraud,  waiver, 
false  representations,  and  assumption  of  risk  as  to 
quality,  all  being  for  the  jury.*'^ 

§  285.   A  fraudulent  entry  of  government  or  patent 

^3  Smith    V.  Parker,  41    Me.  ^^  Graham  v.  Smith,   25   Pa. 

452.  St.  325. 

65  Burr  V.  Todd,  41  Pa.  St.  214. 


250  QUESTIONS   OF  LAW  AND   FACT.  [Part  I. 

lands  is  a  matter  of  fact.^^  And  whether  a  surveyor 
has  run  hnes  wrongly,  by  fraud  or  mistake.^^  And 
whether,  in  a  contract  for  the  sale  of  lands,  there  was 
fraud,  or  misrepresentation,  or  an  offer  to  fulfil  the 
terms  thereof;  ^^  but  where  an  answer  seeks  to  avoid 
a  contract  by  reason  of  fraudulent  misrepresentations, 
it  must  state  in  what  they  consisted,  and  they  must 
be  of  matters  of  fact  of  which  defendant  was  igno- 
rant; and  not  of  law.*'^  And  whether  there  was  fraud 
in  an  auction  sale  of  lots,  on  an  exhibition  of  a  plat 
thereof,  is  for  the  jnry/° 

§  286.  And  where  a  will  is  -written  on  several 
sheets  of  paper  fastened  by  a  string,  it  is  a  question 
of  fact  whether  the  sheets  were  attached  at  the  time 
of  the  signing,  or  whether  there  has  been  a  subsequent 
fraudulent  addition."^ 

§  287.  Also,  whether  the  declarations  of  a  former 
owner  of  chattels  were  made  in  good  faith,  or  in  order 
to  prevent  his  creditors  from  attaching  the  propei'ty, 
imder  an  alleged  conditional  sale;""  and  whether  there 
is  a  fraudulent  combination  between  vendors  and 
purchaser  to  charge  another  as  partner;  '^  and  whether 
a  judgment  was  fraudulently  obtained.'*  And  whether 
an  award  is  void  through  fraud,  is  held  also  to  be  for 
the  jury.'^ 

6^  Waller   v.   Von    Phul,    14         ""^  Ginder  v.  Farnum,  10  Pa. 

Mo.  88.  St.  100. 

6"  Bentley  v.  Rickabaugh,  62         '^  Beedy    v.    Macomber,    47 

Pa.  St.  281.  Me.  455. 

68  Williams  V.  Bentley,  29  Pa.  -s  Porter  v.  Wilson,    13   Pa 

St.  2V2.  St.  650. 

6^  People  V.   Supervisors,  27  '^^  Maverick    v.     Salinas,    15 

Cal.  676.  Tex.  57. 

'0  McCall  V.  Davis,  66  Pa.  St.          '^^  Duren  v.  Getchell,  55  Me. 

433;   Griffiths.  Ely,  12  Mo.  520.  251. 


Chap.  XIX.]  FRAUD.  251 

§  288.  In  an  assignment  for  the  benefit  of  creditors 
a  debtor  may  in  good  faith  prefer  creditors;  as  where 
one  assigned  a  colhery  to  a  creditor  to  be  worked  for 
the  payment  of  the  mdebtedness,  with  the  stipulation 
that  afterwards  the  grantee  should  pay  over  the  bal- 
ances as  the  grantor  should  direct,  it  was  held  valid, 
unless  there  was  an  intent  to  hinder,  delay,  or  defraud 
other  creditors;  of  wliich  intent  the  jmy  were  to 
judge."' 

The  whole  property  may  be  assigned  to  a  single 
creditor,  or  in  unequal  proportions  to  different  cred- 
itors.^^ Of  course,  a  fraudulent  intent,  if  apparent  on 
the  face  of  the  instrument,  may  be  found  by  the  court, 
or  otherwise  by  a  jury;  but  it  is  not  pres'amed;  al- 
though it  is  held  that  the  fraud  of  the  assignor  cannot 
be  cured  by  want  of  co-operation  or  knowledge  in  the 
assignee; '^^  the  only  matter  being  the  intent  of  the 
assignor  at  the  time  of  making  the  transfer.''^  The 
law  always  presumes  in  favor  of  innocence,  and  against 
fraud,  and  will  never  infer  evil  intentions  and  dis- 
honest purposes  from  language  or  conduct  suscep- 
tible of  upholding  those  which  are  good  and  honest;  ^" 
the  maxim  being  Odiosa  et  inhonesta  non  sunt  in  lege 
'prcBsumenda,  et  in  facto  quod  in  se  Jiahet,  et  honum, 
et  malumy  magis  de  hono  quam  de  mala  prcusumen- 
dum  est. 

In  Missouri,  it  is  held  that  a  deed  of  assignment 
giving  the  assignee  power  to  sell  the  goods  on  credit, 

"'^  Vallance  v.  Insurance  Co.  '^  Matthews  v.  Poultney,  33 

42  Pa.  St.  45.  Barb.  127. 

■^^  Wynne    v.    Glidewell,    It  ^'^  Norton  v.  Kearney,  10  Wis. 

Ind.  448.  451. 

"'^  Gere  v.MurrayjG  Minn. 305. 


252  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

does  not  render  the  deed  void  per  se.^^  The  want  of 
pecuniary  responsibiUty  on  tlie  part  of  the  assignee  is 
not  conclusive  evidence  of  fraud.^^  Nor  the  fact  that 
the  deed  authorizes  the  assignee  to  sell  the  property 
at  public  or  private  sale,  for  cash  or  on  credit,  and 
provides  that  he  shall  not  be  answerable  for  the  neg- 
ligence or  misconduct  of  other  persons;  although 
these  are  circumstances  to  go  to  the  jury  on  the  ques- 
tion of  fraud.®^  The  debtor,  it  seems,  may,  under 
restrictions  consistent  with  the  deed,  remain  in  pos- 
session to  control  and  manage  the  property  as  agent 
of  the  assignee;^*  although  this  possession  is  prima 
facie  evidence  of  fraud,  but  subject  to  explanation.^^ 

Under  certain  circumstances,  it  has  been  held  that 
a  jury  was  authorized  to  find  that  the  indorsee  of  a 
promissory  note  might  release  the  maker  in  consider- 
ation of  a  voluntary  assignment  for  the  benefit  of 
creditors;  although  the  note  remained  in  the  hands 
of  the  indorser  as  his  property,  with  the  knowledge 
of  the  maker .^"^ 

Whether  there  has  been  a  delivery  of  possession 
under  an  assignment  is  a  question  of  fact;  and  it  is 
not  necessary  that  the  goods  should  be  removed  from 
the  building  in  order  to  constitute  such  delivery.^^ 

In  Wisconsin,  however,  the  restriction  of  an  as- 
signee's liability  and  allowing  him  to  sell  on  credit, 

^^  Johnson    v.    Assignee,    30  ^^  Howerton  v.  Holt,  23  Tex. 

Mo.  331.  52. 

82  Clark  V.  Groom,  24  111.  316.  ^6  Steward  v.  Strippleman,  16 

83  Baldwin   v.  Peet,   22  Tex.  Tex.  lU. 

714;  Carlton  v.  Baldwin.  22  ^7  Hall  v.  Wheeler,  13  Ind. 
Tex.  Y31.  311. 

84  Linn  v.  Wright,  18  Tex.  336. 


Chap.  XIX.]  rKAUD.  253 

avoids  the  assignment,  contrary  to  the  ruhngs  above 
stated.*^*^ 

The  intent  to  defraud,  &c.,  must  be  connected  with 
the  making  of  the  instrument  itself,  and  not  merely 
with  some  other  independent  act.  And  so,  the  court 
remarked,  on  certain  instructions,  that,  "the  charge 
given  at  the  circuit  is  certainly  erroneous,  where  it 
says  that  unless  the  assignor  surrendered  to  the  as- 
signee all  the  property  which  he  had  liable  to  execu- 
tion at  the  time  of  executing  the  assignment,  the  in- 
strument is  void,  and  that  if  he  did  not  deliver  all  his 
property  to  the  assignee,  the  assignment  is  void;  and 
that  if  he  carried  off  this  five  thousand  dollars,  or  the 
bag  of  gold,  whatever  it  may  have  contained,  the 
assignment  cannot  be  upheld;  and  that  it  became 
the  duty  of  the  jury  to  find  that  it  was  executed  with 
intent  to  hinder,  delay,  and  defraud  creditors;  and 
that  if,  when  he  executed  the  assignment,  he  intended 
to  reserve  the  five  thousand  dollars  to  his  own  use, 
and  did  take  it  away  with  him  to  Europe,  the  case  is 
the  same  as  if  the  money  had  been  reserved  on  the 
face  of  the  assignment."  ^^ 

In  Missouri  it  is  held  —  in  exception  to  the  general 
rule,  I  think  —  that  to  make  an  assignment  void  for 
fraud,  the  assignee  must  be  a  party  to  the  fraud 
knowingly .^^  And  it  is  held  that  no  subsequent  act 
of  the  assignor  can  vitiate  the  instrument,  which  is 
consistent  with  the  doctrine  stated  above.^^  Also,  in 
that  state,  held,  that  an  assignment  is  not  avoided 

88  Hutchinson  v.  Lord,  1  Wis.  ^^  Wise  v.  Wimer,  23  Mo. 
313.  239. 

89  Wilson  V.  Forsyth,  24  ^^  Gates  ik  Labeaume,  19  Mo. 
Barb.  128.  IT. 


254  QUESTIONS    OF   LAW  AND   FACT.  [Pakt  I. 

because  it  has  a  tendency  to  delay  creditors,  but  with- 
out any  intent  to  do  so  on  the  part  of  the  assignor."' 
In  some  states  a  different  rule  prevails.  But  this  is 
the  general  rule. 

And,  in  Indiana,  it  is  held  that  the  inquiry,  in  an 
action  to  set  aside  a  voluntary  assignment,  should  al- 
ways be  whether  the  act  Avas  a  l)ona  fide  transaction, 
or  a  mere  trick  or  contrivance  to  defeat  creditors,  — 
whether  it  was  to  pay  his  debts,  or  not;  and  whether 
it  was  on  a  full  consideration ;  and  the  presumption 
of  the  law  is  always  against  bad  faith,  so  that  who- 
ever attacks  an  mstrument  must  clearly  prove  the 
fraud.^^ 


CHAPTER   XX. 

Malice. 

§  289.  TiiE  same  distinction  exists  in  regard  to  mal- 
ice that  we  have  already  noticed  in  respect  to  fraud, 
namely;  there  is  malice  in  law  presumed  from  certain 
acts,  and  malice  in  fact,  or  actual  malice,  inferable 
from  a  combination  of  circumstances  in  evidence,  gen- 
erally speaking.  The  former,  of  course,  is  for  the 
court,  and  the  latter  for  the  jury,  to  decide  upon. 

Malice  aforethought  is  an  essential  ingredient  in 
the  crime  of  murder;  and  if  a  homicide  be  committed 
in  the  heat  of  passion,  produced  by  adequate  provoca- 
tion, and  before  a  reasonable  time  has  elapsed  for  the 

92  Gatos    V.    Labeaume,    19  ^^  Stewart  V.  English,  6  Ind. 

Mo.  IT.  ne. 


Chap.  XX.]  MALICE.  •  255 

blood  to  cool,  and  reason  to  resume  its  habitual  con- 
trol, and  is  the  result  of  the  temporary  excitement  by 
which  the  control  of  reason  was  disturbed,  rather  than 
of  any  w  ickedness  of  heart,  or  crnelty,  or  recklessness 
of  disposition,  the  offence  is  manslaughter  only.  And 
the  question  as  to  what  is  an  adequate  or  reasonable 
provocation,  is  one  of  fact  for  the  jury.  And,  also, 
whether  a  reasonable  time  had  elapsed  for  the  pas- 
sions to  cool,  and  reason  to  resume  its  control.^  * 

§  290.  Where  a  mode  of  punishment  by  the  master 
of  a  ship  is  unjustifiable,  whether  it  was  from  malice, 
hatred,  or  revenge,  is  a  question  of  fact  for  the  jury.- 

And  express  malice,  from  the  facts  and  circum- 
stances of  the  case,  is  for  them  to  infer;  and  the 
court  cannot  instruct  them  that  there  is  no  evidence 
of  express  malice.^ 

§  291 .  In  matters  of  malicious  arrest  and  malicious 
prosecution,  the  two  questions  of  malice  and  probable 
cause  of  action,  are  closely  allied,  and,  it  may  be  said, 
interw^oven.  However,  it  is  held,  theoretically,  that, 
in  such  cases,  the  question  of  malice  is  always  a  ques- 
tion of  fact,  and  must  be  submitted  to  the  jury;  while 
a  want  of  probable  cause,  which  is  equally  essential  to 
sustain  such  an  action,  is  to  be  determined  by  the 
court,  as  a  question  of  law;*  and  so,  whether,  on  the 
plaintiff's  evidence,  a  probable  cause  is  proved.^ 

Where  one  was  arrested  on  a  charge  of  fraud,  and 
it  appeared  it  was  for  the  purpose  of  compelling  him 

*  But  see  ante,  p.  140. 


1  Mahcr  v.  People,   10  Mich.  *  y^^,,   Latham    v.   Libby,  38 
219.  Barb.  343. 

2  0.  S.  V.  Alden,  Sprague,  95.  ^  Kidder  v.  Parkhurst,  3  Al- 

3  People  r. Roberts,  6  Cal.217.  len,  395. 


256  QUESTIONS    OF   LAW   A:NT)   fact.  [Part  I. 

to  surrender  certain  promissory  notes  to  the  prosecu- 
tor, of  wliich  they  were  joint  owners,  it  was  held  that 
such  a  prosecution  was  Avithout  probable  cause,  and 
malicious  in  legal  contemplation/'  But  it  is  held  that 
in  an  action  for  malicious  prosecution,  the  burden  of 
proof  is  on  the  plaintiff  to  show  both  malice  and  the 
want  of  probable  cause/  And  even  the  existence  of 
malice  does  not  raise  the  presumption  of  want  of  prob- 
able cause/  I^^or  will  malice  alone  sustain  an  action 
for  malicious  prosecution/  Malice,  however,  may  be 
inferred  from  want  of  probable  cause,  and  the  latter 
determined  by  a  jury,  when  the  facts  are  controvert- 
ed; ^^  but  under  the  instructions  of  the  court.  "Where 
the  facts  are  undisputed,  the  judge  determines  the 
legal  effect  of  the  facts,  and  directs  the  verdict  there- 
on; ^^  and  if  the  jury  do  not  follow  the  instruction 
positively,  the  verdict  will  be  set  aside/- 

"Wliether  a  justice  of  the  peace  in  issuing  a  warrant 
improperly,  for  the  arrest  of  an  individual,  did  it  mali- 
ciously, is  a  question  for  the  jury.'^ 

It  is  held  that,  on  the  trial  of  a  prisoner  on  the 
charge  of  murdering  his  wife,  the  state  has  a  right  to 
prove  a  long  course  of  ill  treatment  by  him  towards 
his  wife,  and  whether  an  alleged  reconciliation  was 
real  or  pretended,  so  as  to  affect  the  question  of  mal- 
ice, is  for  the  jury/* 

6  Kimball  u.Bates,  50  Me.  309.         "  Besson  v.  Southard,  10  N. 

7  Ritchey  v.  Davis,  11  Iowa,     Y.  240. 

126.  ^  Waldhcim  v.  Sichel,  1  Hil. 

8  Wade  iJ.Walden,  23  111.  425.  (N.  Y.)  47. 

9  Israel  v.  Brooks,  23  111.  575.  ^^  State  v.  Allen,  22  Mo.  318. 
1''  Cloon  V.  Gerry,  13  Gray,  ^^  State  v.  Rush,  12  Ired  (N. 

202.  C.)  383. 


Chap.  XX.]  MALICE.  257 

In  an  action  on  the  case  for  a  disparaging  state- 
ment published  concerning  plaintiff's  goods,  whereby 
he  sustained  special  damage,  malice  is  presumed  from 
the  fact  of  the  falsity  of  the  publication.  But  if  the 
defendant  rebuts  the  presumption  by  proof  that  the 
publication  was  honestly  made,  and  that  there  was  a 
reasonable  occasion  for  it,  this  proof  makes  the  publi- 
cation pri\aleged,  and  is  a  good  defence;  unless  the 
plaintiff  can  show  malice  in  fact,  and  has  verdict 
thereon.'^ 

In  an  action  of  trespass  for  the  destruction  of  prop- 
erty, the  value  of  the  property  is  the  measure  of  dam- 
ages, unless  it  was  done  wantonly  or  maliciously; 
which  is  a  question  of  fact.^^ 

In  slander  the  law  implies  malice,  when  the  words 
are  proved;  unless  in  the  matter  of  privileged  com- 
munications, where  the  speaker  is  under  a  legal  or 
moral  duty  towards  the  person  to  whom  he  makes  the 
communication.  In  this  case,  malice  must  be  proved, 
and  go  to  the  jury.^'' 

The  general  rule  is  thus  stated  in  regard  to  mali- 
cious prosecutions,  by  the  Supreme  Court  of  Pennsyl- 
vania :  "  Want  of  probable  cause  is  not  malice  itself, 
but  only  evidence  of  malice.  It  has  not  the  force  of 
a  legal  conclusion;  and,  therefore,  the  existence  of 
malice  is  a  fact  to  be  found  by  a  jury.  It  is  true, 
there  are  certain  things  which,  if  proved,  the  law 
declares  to  be  conclusive  evidence  of  malice;  but  mere 

^^  Swan  V.  Tappan,  5  Cush.  ^'^  Adcock  v.  Marsh,  8  Ired, 
104.  (N.  C.)  361. 

16  Wylie   V.    Smitherman,    8 
Ired.  239. 

17 


258  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

want  of  probable  cause  is  not  one  of  them.  If  a  pros- 
ecution be  instituted  for  the  purpose  of  extorting 
money  or  other  property,  the  law  implies  malice;  and 
if,  in  this  case,  the  prosecution  against  the  plaintiff 
below  was  begun,  or  continued,  to  obtain  a  title  to  the 
horse  alleged  to  have  been  stolen,  that  fact  was  con- 
clusive evidence  of  malice,  which  the  jury  were  bound 
to  receive  as  such."  '^ 

And  the  Supreme  Court  of  Indiana  thus  define 
probable  cause  as,  "  that  apparent  state  of  facts,  found 
to  exist  upon  reasonable  inquiry;  that  is,  such  inquiry 
as  the  given  case  rendered  convenient  and  proper, 
which  would  induce  a  reasonably  intelligent  and  pru- 
dent man  to  believe  the  accused  person  had  commit- 
ted, in  a  criminal  case,  the  crime  charged;  and  in  a 
civil  case,  that  a  cause  of  action  existed."  ^^ 

It  is  held,  in  England,  as  well  as  in  this  country, 
that  reasonable  and  probable  cause  is  one  of  law,  for 
the  judge  to  decide. '"^ 

In  Iowa,  it  is  held  a  defence  that  the  defendant 
acted  under  the  advice  of  counsel,  on  a  full  state- 
ment of  the  facts  and  circumstances ;  but  if  he  mis- 
represented the  facts  to  the  counsel,  or  does  not,  in 
good  faith,  act  on  the  counsel's  advice,  or  where  it  is 
evident  that  he  did  not  himself  believe  there  was  good 
cause  for  the  prosecution,  or  where  both  counsel  and 
client  acted  in  bad  faith,  the  advice  of  counsel  is  no 
shield,  and  the  hona  fides  is  for  the  jury  to  deter- 


18  Schofield    V.    Ferrers,    47         ^  Hailes  v.  Marks,  *l  Hurl. 

Pa.  St.  196.  &  Nor.  55. 

1^  Lacy  V.  Mitchell,  23  Ind.         ^^  Center  v.  Spring,  2  Iowa, 

67.  403. 


CiiAP.  XX.]  MALICE.  259 

It  is  held  doubtful  whether  'prima  facie  the  want 
of  probable  cause  is  established  by  the  order  of  the 
judge  discharging  the  arrest.^^ 

It  is  held  a  justification  if  the  officers  of  govern- 
ment think  there  is  probable  cause,  in  Pennsylvania; 
and  the  court  say,  "  If  the  officers  of  the  state,  who 
are  appointed  on  account  of  their  legal  learning,  con- 
sider that  a  given  state  of  facts  is  sufficient  evidence 
of  probable  cause,  how  can  the  private  citizen  be  said 
to  be  in  fault  in  acting  upon  such  facts ;  and  how  can 
the  state  condemn  him  in  damages  for  so  doing.  To 
decide  so  is  to  use  the  machinery  of  government  as 
a  trap  to  insnare  those  who  trust  in  government  for 
such  matters,  and  who  ought  to  trust  in  it.  If  such 
officers  make  a  mistake,  it  is  an  error  of  government 
itself,  and  government  cannot  allow  the  citizen  to 
suffer  for  his  trust  in  its  proper  functionaries."  ^^ 

In  an  action  for  the  abuse  of  legal  process,  malice, 
or  probable  cause,  need  not  be  proved  or  alleged; 
since  unlawful  acts  wilfully  done  are  malicious  per  se, 
and  probable  cause  cannot  be  predicated  for  a  prose- 
cution to  accomplish  a  purpose  known  by  the  prose- 
cutor to  be  unlawful.^*  And  it  need  not  even  be 
shown  that  the  action  h-as  terminated.  And  exem- 
plary damages  may  be  given  in  all  actions  for  mali- 
cious prosecution.^^ 

If  the  facts  on  which  the  question  of  reasonable 
cause  rests  are  doubtful,  it  is  held,  in  ]S^ew  York,  that 

22  Gordon  v.  Upham,  4  E.  D.  24  Page  v.  Gushing,  38  Me. 
Smith  (N.Y.)  10.  527. 

23  Laughlin  v.  Glawson,  27  25  Bradley  v.  Morris,  Busbee 
Pa.  St.  330.  (N.  G.)395. 


260  QUESTIONS    OP   LAW   AND    FACT.  [Part  I. 

if  the  facts  be  found  in  such  or  such  a  manner,  they 
do,  or  do  not,  amount  to  probable  cause;  and  if  the 
judge  leaves  it  to  the  jury  to  determine,  not  only 
whether  the  facts  are  true,  but  also  whether,  if  true, 
they  prove  a  want  of  probable  cause,  it  is  fatal  error.-" 
And  it  cannot  go  to  the  jury  at  all,  unless  the  facts 
are  doubtful.-^ 

Where  suit  was  commenced  on  a  protested  bill  paid 
before  suit,  and  thereon  an  action  of  malicious  prose- 
cution was  predicated,  it  was  held  a  question  for  the 
jury  to  determine  whether  the  plaintiffs  in  the  first 
suit  Iviiew  the  bill  was  paid  when  they  brought  their 
action.-^ 

§  292.  The  question  of  self-defence  is  intimately 
related  to  the  subject  in  hand.  And  in  a  criminal 
case,  whether  the  prisoner  had  reasonable  grounds  to 
apprehend  danger  of  his  life  is  a  matter  for  the  deter- 
mination of  the  jury,  when  he  slew  the  deceased.^^ 
And  so  the  weight  of  threats. ^'^  And  even  if,  after- 
wards, it  appear  that  there  was  no  danger,  jet  reason- 
able fear  is  a  proper  plea  in  defence.'^^  And  the  jury 
are  to  determine  the  necessary,  and  hence  justifiable 
degree  of  force,  in  protecting  property.^-  But  in 
Missouri,  it  seems  tliat  provocation  is  held  a  question 
of  law,  as  to  its  sufficiency.'^^      And  so  in  the  United 

26  Bulkeley  v.  Smith,  2  Duer         ^o  McPherson    v.    State,    22 

(N.  Y.)  261.  Ga.  486. 

2'  Hasten  v   Deyo,  2  Weud.          ^^  Meredith      v.       Common- 

(N.  Y.)  425.  wealth,  18  B.  Mori.  (Ky.)  49. 

28  Weaver  V.Page,  6  Cal.  684.  ^2  gtate   v.  Clements,  32  Me. 

29  Goodal  V.  State,  1  Oregon,  2T9. 

335 ;  Pfomer  v.  People,  4  Par-  ^3  gtate  v.  Jones,  20  Mo.  64. 
ker  (N.  Y.)  558. 


Chap.  XXI.]  MISCELLA:0]OUS   ITEMS.  261 

States  Circuit  Court  of  the  first  circuit  (Mass.),  unless 
it  cannot  be  apprehended  by  the  court,  when  a  hypo- 
thetical instruction  may  be  given,  and  the  matter  sub- 
mitted to  the  jury.^* 


CHAPTER    XXI. 

Miscellaneous  Items. 

I  take  this  chapter  as  a  receptacle  for  the  drift 
which  has  accumulated  in  our  progress  hitherto,  con- 
sisting of  items  which  did  not  seem  appropriately  to 
fit  into  any  of  the  regular  places,  and  yet  which  have 
a  direct  bearing  upon  the  general  subject,  as  impor- 
tant, in  some  instances,  as  almost  any  point  that  has 
passed  in  review.  And  being  miscellaneous,  we  need 
not  feel  any  particular  solicitude  concerning  a  logical 
order  of  arrangement. 

§  293.  And  so  we  will  begin  with  the  subject  of 
minority.  And  what  are  necessaries  is  held  to  be  a 
question  admitting  no  accurate  definition,  but  depen- 
dent on  circumstances.  It  is  generally  a  question  for 
the  jury,  but  may  sometimes  be  withheld  from  them, 
and  pronounced  upon  authoritatively  by  the  court. 
"Where  a  boy  seventeen  years  old  was  carrying  on  a 
farm  for  his  mother,  who  was  a  widow  and  his  guar- 
dian, and  bought  a  pair  of  cattle  which  he  and  his 
mother  kept  for  a  while  on  the  farm,  and  then  ex- 
changed for  a  horse  to  be  worked  in   the  farming 


34 


U.  S.  V.  Armstrong,  2  Curtis,  C.  C,  450. 


262  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

operations,  it  was  held  that  the  question  whether  the 
purchase  of  the  cattle  was  necessary  ought  to  have 
been  submitted  to  the  jury.^  The  question  of  neces- 
saries, usually,  is  referred  to  this  r£ither  indefinite 
standard,  whether  articles  furnished  were  suitable  to 
the  mhior's  estate  and  condition,  and  whether  he  is 
without  other  means  of  supply.^  And  it  has  been 
held  a  question  of  law  for  the  court,  whether  certain 
articles  for  which  an  infant  is  sued  are  within  the 
definition  of  necessaries,  and,  if  so,  a  question  of  fact 
for  the  jury  to  pass  upon,  whether  those  articles  are 
adapted  to  the  condition  and  wants  of  the  infant.'^ 
And  one  of  the  essential  elements  entering  into  such 
an  inquiry  is,  whether  he  had  a  parent  or  guardian 
able  and  willing  to  support  hun.* 

Where  a  boy,  ten  years  of  age,  gets  on  a  street 
railway  car  in  motion,  and  the  driver  compels  him  to 
jump  off  while  the  car  is  moving  at  a  dangerous  rate 
of  speed  after  the  boy  has  remained  thereon  for  a 
time,  the  company  is  liable  if  the  boy  used  reasonable 
care,  so  far  as  possible  under  the  circumstances,  in 
getting  off  the  car.  And  the  question  whether  a  boy 
of  that  age  has  sufficient  capacity  to  take  care  of 
himself,  is  for  the  jury.^  And  where,  in  such  a  case, 
it  is  claimed  by  the  defendant  that  the  act  of  the 
driver  was  not  in  the  course  of  his  employment,  be- 
cause forcible  and  malicious,  and  not  merely  negli- 
gent, and  therefore  defendant  (the  company)  is  not 

1  Mohney   v.   Evans,   51    Pa.  ^  Merriam    v.    Cunnii)gham, 
St.  83.  11  Cush.  44. 

2  Davis  V.  Caldwell,  12  Cush.  ^  g^-ift  y.  Bennett,  10  Gush. 
513.  43t. 

5  Lovett  V.  R.  R.  9  Allen,  563. 


Chap.  XXI.]  MISCELLANEOUS   ITEMS.  263 

liable,  the  defence  will  not  avail;  and  the  question 
whether  the  plaintiff  was  on  the  car  as  a  passenger, 
and  was  pushed  off,  or  was  there  without  right  and 
dropped  off,  is  for  the  jury  to  decide.^ 

§  294.  The  question  of  necessity,  under  the  lateral 
railroad  laws  of  Pennsylvania,  as  to  the  location  of  a 
proposed  road,  is  held  to  be  a  question  of  law;  the 
only  question  for  the  jury  being  that  of  damages.^ 

In  estimating  damages  for  the  right  of  way  for  a 
railroad,  it  seems  the  jury  may  consider  the  necessity 
of  the  railroad  building  a  culvert  to  preserve  a  neces- 
sary embankment  on  the  land  of  claimant.^ 

§  295.  In  the  matter  of  performance  and  acceptance 
of  work,  the  following  case  arose,  which  is  thus  stated 
in  the  syllabus  of  the  reporter :  "  Where  a  contract  for 
certain  engines,  pumps,  and  boilers,  provided  that 
plaintiff's  engineer  should  be  at  liberty,  at  all  times, 
to  require  the  rejection  of  any  work  which  he  should 
deem  inferior,  and  of  any  material  which  he  might 
deem  of  imj)roper  or  inferior  quality  or  strength,  and 
to  require  the  substitution  of  other  work  and  materi- 
als, and  the  contract  further  provided  for  the  payment 
of  advances  as  the  work  progressed,  based  upon  the 
relative  amount  of  the  work  furnished  to  the  whole 
sum,  and  the  principal  contractors  thereupon  made  a 
sub-contract,  through  plaintiff's  engineer,  with  other 
parties,  as  to  part  of  the  work,  according  to  drawings 
approved  by  plaintiff's  engineer,  and  such  work  was 
subsequently  accepted  by  said  engineer  as   satisfac- 

^  Meyer    v.  R.    R.   8  Bosw.  "'  Brown  v.  Peterson,  40  Pa. 

(N.  Y.)  310.  St.  373  (and  see  pa^re  377). 

8  Nason  v.  R.  R.  4  R.  I.  378 


264  QUESTIONS    OF    LAW   AND    FACT.  [Part  I. 

toiy,  but  where  the  contract  also  provided  that  when 
completed  the  said  engines,  pumps,  and  boilers  should 
perform  a  stipulated  duty,  and  where,  upon  the  trial 
of  an  action  brought  against  the  sureties  of  the  prin- 
cipal contractors  for  the  general  non-jDcrformance  of 
the  contract,  a  conflict  of  evidence  arose  upon  the 
following  points:  1.  Whether  or  not  the  principal 
contractors  were  improperly  influenced  by  plaintiff's 
engineer  in  the  award  of  the  sub-contract  to  the  sub- 
contractors; 2.  Whether  or  not  plaintiffs  engineer, 
in  order  to  bring  about  this  award,  agreed  to  be  re- 
sponsible that  the  sub-contractors  would  perform  their 
work  perfectly,  and  in  full  compliance  with  and  satis- 
faction of  the  original  contract;  3.  Wliether  or  not 
plaintiff's  engineer,  in  all  which  he  did  in  regard  to 
the  sub-contract,  acted  as  the  agent  of  the  principal 
contractors ;  4.  Whether  or  not  an  interference  took 
place  by  plaintiff's  engineer  with  the  sub-contractors, 
without  the  acquiescence  of  the  principal  contractors ; 
and  5.  Wliether  the  acceptance  of  the  work  done 
under  the  sub-contract  by  plaintiff's  engineer  Avas  an 
acceptance  on  behalf  of  the  principal  contractors,  or 
on  behalf  of  the  plaintifts;  and  if  on  behalf  of  the 
latter,  whether  it  was  an  absolute  one,  or  was  for  the 
sole  purpose  of  making  it  the  basis  for  an  estimate 
for  advances  to  be  made  under  the  original  contract. 

Held,  that  by  such  conflict  of  evidence  clear  issues 
of  fact  were  raised  for  the  determination  of  the  jury, 
under  proper  instructions  from  the  court."  ^ 

§  296.  On  a  question  of  waste,  it  is  held  that  cut- 

^  Water  Commissioners  of  Detroit  v.  Burr  et  al.  2  Sweeney 
(N.  Y.)  25. 


Chap.  XXI.]  MISCELLANEOUS   ITEMS.  265 

ting  and  selling  trees  is  not  waste,  necessarily,  in  this 
country,  as  it  is  in  England  •  that  the  condition  of  the 
land  and  requirements  of  husbandry  in  clearing  lands 
must  be  considered,  and  that  to  what  extent  timber 
may  be  cut  without  waste,  is  a  question  of  fact;  as 
also  whether  cutting  and  selling  timber  is  a  violation 
of  the  stipulation  in  a  bond  that  the  defendant  was  to 
manage  in  a  prudent  and  husbandlike  manner.''' 

§  297.  Sometimes  the  question  of  ownership  comes 
up  for  decision,  as  where  different  members  of  a  stage 
company,  or  other  corporation,  by  two  bills  of  sale 
transfer  the  same  property  to  two  separate  purchasers, 
and  where  the  first  was  executed  as  a  partnership  sale, 
and  the  latter  as  the  sale  of  property  of  which  the 
vendor  was  absolute  owner.^^  And  where  property 
was  attached  and  delivered  by  the  ofiicer  to  a  re- 
ceiptor, who,  on  subsequent  demand,  refused  to  return 
it,  on  the  ground  that  he  had  purchased  it  from  the 
debtor  before  the  attachment.'^  And  whether  a  book 
said  to  contain  assessments  on  unseated  lands,  found 
in  an  office  occupied  by  the  commissioners  and  treas- 
urer, and  requiring  extrinsic  evidence  to  identify  it, 
belonged  to  the  commissioners  as  an  official  record, 
validating  the  assessments.'^     All  these  are  for  the 

§  298.  As  to  the  duty  of  a  parent,  it  is  said  that 
protection  being  a  paternal  duty,  entire  failure  to 
extend  it  must  be  negligence.     Generally,  what  is, 

1*^  Drown   v.    Smith,    52   Me.  ^2  YUch.      v.     Chapman,     28 

143.  Conn.  261. 

^1  Western     Stage      Co.     v.  ^^  McReynolds     v.     Longen. 

Walker,  2  Iowa,  518-520.  berger,  57  Pa.  St.  13. 


266  QUESTIONS    OF   LAW   AND    FACT.  [Part  I. 

and  what  is  not,  negligence,  is  a  question  for  the  jury. 
When  the  standard  of  duty  is  a  shifting  one,  a  jury 
must  determine  what  it  is,  as  well  as  find  whether  it 
has  been  complied  with,  ^ot  so  when  the  law  deter- 
mines precisely  what  the  extent  of  duty  is,  and  there 
has  been  no  performance  at  all.'^ 

And  so,  where  one  stands,  in  a  special  sense,  in 
loco  parentis,  the  question  of  excessive  punishment 
may  arise  for  the  jury  to  determine;  and  it  was  held, 
in  a  certain  case  of  indictment  against  a  schoolmaster 
for  an  assault  on  a  pupil,  that  it  was  not  error  for  the 
judge  to  instruct  the  jury  that  the  defendant  was 
criminally  liable  for  punishing  a  pupil  only  when  he 
acted  malo  animo,  or  inflicted  more  punishment  than 
necessary,  and  was  not  liable  for  error  of  opinion, 
provided  he  was  governed  by  an  honest  motive  in 
regard  to  the  discipline  of  the  school,  and  the  inter- 
ests of  the  child;  and  instruct  them,  instead,  that, 
in  punislnuent,  the  teacher  must  use  reasonable  judg- 
ment and  discretion,  and,  as  to  modes  and  degrees  of 
punishment,  be  governed  by  the  nature  of  the  offence, 
and  the  age  and  strength  of  the  pupil;  and  left  it  to 
them  to  decide  whether  the  punishment  was  exces- 
sive.^'^  And  what  is  a  proper  instrument  of  punish- 
ment, is  also  for  the  jury.^*'  And  it  is  held,  also,  that 
a  teacher  is  not  relieved  from  damages  in  a  clearly 
excessive  and  needless  punishment  therein,  by  his 
good  faith  m  inflicting  it. 

§  299.  As  to  family  relationships,  it  is  for  the  jury 

1*  Glassey  v.  R.  R.  57  Pa.  St.  ^^  Lander   v.  Sea\er,   32   Vt 

174.  119. 

^^  Commonwealth  v.  Randall, 
4  Gray,  38. 


Chap.  XXI.]  MISCELLANEOUS    ITEMS.  267 

to  say  who  is  the  head  of  a  family,  under  the  exemp- 
tion law;  '^  and  whether  a  certain  woman  is  the  widow 
of  a  deceased  person.'®  What  constitutes  an  heir-at- 
law  is  a  question  for  the  court;  but  whether  a  deceased 
person  died  without  children,  and  whether  one  is  his 
oldest  nephew,  is  for  the  jury.^^  And  the  court  must 
say  who  are  the  heirs  of  a  deceased  person.-*^ 

§  300.  And  a  claim  against  an  estate  which  is 
insolvent  may,  in  Massachusetts,  be  passed  upon  by  a 
jury,  to  determine  what  is  the  excess  over  the  value 
of  property  mortgaged  in  partial  security  thereof.'^^ 
And,  in  Alabama,  whether  a  claim  has  been  duly  pre- 
sented to  the  executors,  is  also  for  a  jury." 

§  301.  Reasonable  use  is  matter  of  fact;  as,  whether 
the  use  of  a  stream  to  carry  off  the  waste  of  a  man- 
ufactory; which  is  to  be  determined  upon  the  circum- 
stances of  the  particular  case;  as  the  size  and  char- 
acter of  the  stream,  for  what  purposes  it  is  used,  the 
extent  of  the  pollution  of  its  waters  by  the  refuse,  the 
benefit  to  the  manufacturer,  and  injury  to  other  ripa- 
rian proprietors.^'  And,  in  determining  the  question, 
evidence  showing  the  uniform  custom  of  the  country 
is  admissible.^*  Also,  where  a  jury  were  instructed 
that  they  were  not  to  look  alone  at  what  would  be 
a  reasonable  use  at  one  mill,  if  there  were  no  others 

^'  Barnes  v.  Kogers,  23   111.         ^^  Trustees  v.  Cronin,   4  Al- 

352.  len,  144. 

IS  Patchen  v.  Devin,  31  Barb,         ^  Executors   v.    Praytor,    36 

431.  Ala.  694. 

1^  Ernull  V.  Whitford,  3  Jones         ^3  Hayes  v.  Waldron,  44  N. 

L.  476.  H.  583. 

20  Bradford  v.  Erwin,  12  Ired.         24  g^ow   v.  Parsons,  28    Vt. 

(N.  C.)  292.  461. 


268  QUESTIONS    OF   LAW   AND    PACT.  [Part  I. 

on  the  stream,  but  to   consider  the  wants  of  other 
mills  lil:ewise,  it  was  held  correet.'^^ 

§  302.  In  matters  of  public  liability,  as,  for  example, 
in  ]S^ew  Hampshire,  whether  there  would  be  such 
access  to  a  bridge  over  a  river  by  public  highways  as 
to  make  it  of  public  utility,  and,  therefore,  the  town  is 
subject  to  indictment  for  not  building  it,  it  is  held  a 
question  for  the  jury;-*^  although,  in  Connecticut,  a 
joint  liability  of  two  towns  for  an  injury  occurring 
through  want  of  repairs  on  a  bridge  over  the  line 
between  them,  and  kept  up  by  them  togethei*,  was 
decided  imperatively  by  the  court;  but  it  does  not 
appear  that  there  was  any  conflict  in  the  evidence.^^ 
And  in  regard  to  pauper  supplies,  whether  these  were 
really  furnished  and  received,  has  been  held,  in  Maine, 
a  mixed  question  of  law  and  fact,  to  be  decided  by 
the  jury,  under  instructions  as  to  what  would,  or 
would  not,  constitute  such  furnishing  and  receiving, 
within  the  statute.-^  But  it  is  held  within  the  prov- 
ince of  the  jury  to  say  whether  the  person  receiving 
aid  was  a  pauper,  and  stood  in  need  of  relief;  and 
whether  the  overseers  acted  in  good  faith  in  advancing 
supplies;  and  whether  these  were  judiciously  ap- 
plied.^^  If  the  assent  of  the  other  selectmen  to  the 
act  of  one  of  their  number  in  furnishing  supplies  is 
presumed,  the  presumption  is  one  of  fact,  and  not 
of  law 


30 


25  Parker    v.    Hotchkiss,    25  ^8  inhab.  of  Veazie  v.  Inhab. 
Conn.  331.  of  Chester.  53  Me.  35. 

26  State    V.   Northumberland,  ^9  J\Joultonboro'      v.     Tufton- 
U  N.  H.  630.  boro',  43  N.  H.  318. 

27  Town  of  Tolland  v.  Town  ^o  Burbank    v.    Piermont,    43 
of  Williugton,  26  Conn.  579.  N.  H.  44. 


Chap.  XXI.]  MISCELLANEOUS   ITEMS.  269 

§  303.  So  of  official  liability;  as  where,  in  an  action 
again.st  a  constable  for  returning  an  execution  unsat- 
isfied when  the  claim  might  have  been  collected,  the 
question  is  for  the  jury  whether  the  defendant  in  the 
execution  had  property  enough  to  meet  the  demand; 
and  it  is  held  that  the  officer  cannot  avail  himself  of 
the  plea  that  any  of  the  property  is  exempt,  since  his 
duty  was  to  levy,  and  leave  the  exemption  to  be 
claimed  by  the  debtor,  it  being  a  statutory  privilege, 
and  purely  personal.^^  But  this  surely  cannot  be  the 
law,  where  the  statute  points  out  the  exemptions;  for 
this  implies  a  prohibition  to  the  officer  to  levy  on  the 
property  thus  exempted. 

§  304.  As  to  judicial  proceedings,  it  is  for  the  court 
to  say  whether  a  plaintiff  is  the  real  party  in  in- 
terest.'^" But  it  seems  strangely  held,  in  New  York, 
that,  in  an  action  against  a  sheriff  for  an  escape, 
before  a  justice  of  the  peace,  the  jury  may  be  called 
upon  to  determine  what  were  the  circumstances  of 
the  issuing  of  a  smnmons,  as  to  whether  a  clerk,  in 
ffiling  out  the  summons,  had  any  discretion  left  to 
him,  so  as  to  vitiate  the  issue,,  and  that  if  the  court 
decides,  without  submission  to  the  jury,  that  the  sum- 
mons was  lawfully  issued,  it  will  be  a  ground  for 
reversal.^^  Also,  it  appears  that  a  jury  may  find, 
where  a  record  is  silent,  upon  whose  motion  an  order 
of  court  was  made.^*  The  issue  of  misnomer  in 
abatement  is  held  for  the  jury  also.'^^    An  inference 

31  Baker  v.  Briutnall,  52  Barb.  34  Q^eps  v.  Baird,  3  OhiD  St. 
189.      Bockes,  J.,  dissenting.  281. 

32  Williams  v.  Whitlock,  14  35  State  v.  Marston,  31  Me. 
Mo.  660.  292. 

33  Borrodaile,  Sheriff,  &c.  v. 
Leek,  9  Barb.  612. 


270  QUESTIONS    OF   LAW   AND    TACT.  [Part  I. 

from  the  conduct  or  silence  of  a  party,  under  asser- 
tions, is,  of  course,  a  matter  for  the  jmy.^*^ 

The  correctness  of  the  decision  of  a  private  arbiter 
is  judicially  presumed,  and  unless  there  is  evidence 
of  fraud  or  mistake,  it  is  error  to  submit  it  to  the 
jury.'^ 

In  an  attempt  to  reform  by  parol  evidence  of  mis- 
take a  written  instrument,  it  is  for  the  jury  to  say 
what  was  proved,  and  for  the  court  to  say  whether 
the  facts  found  establish  such  a  mutual  misunder- 
standing as  would  make  it  a  fraud  to  hold  the  parties 
to  their  writing.''^ 

So,  what  is  an  arrest  is  matter  of  law ;  but  whether, 
in  a  particular  case,  an  arrest  was  made,  is  a  matter 
of  fact,  depending  on  intention."^^ 

§  305.  In  an  assault  upon  an  officer  attempting  to 
attach  a  horse,  where  only  one  party  participated,  in 
the  absence  of  the  other,  who  came  in  after  the  affi*ay 
was  over,  and  the  officer  had  left,  and  made  some 
violent  demonstrations,  the  question  as  to  his  joint 
liability  was  held  appropriately  left  to  the  jury,  who 
found  him  liable  as  a  participant.^*^ 

§  306.  On  the  trial  of  an  indictment  for  seduction, 
the  question  as  to  the  previous  chaste  character  of 
the  prosecutrix  is  a  question  of  fact.^^ 

§  307.  AYhether  the  acts  of  a  street  commissioner 
are  within  the  general  authority  conferred  upon  him, 

^Morrill   v.   Richey,    18   N.         ^^  Journey  ??.Sharpe,  Jones,  4 

H.  295.  L.  (N.  C.)  168. 

37  Eudic    V.    Bilger,    4*7    Pa.          ^o  Wakefield  v.   Fairman,  41 

St.  66.  Vt.  345. 

28  Schettigrer    v.    Happle,     3         *^  State  v.  Carron,   18  Iowa, 

Grant  (Pa.)  65.  373. 


CiiAP.  XXL]  MISCELLANEOUS    ITEMS.  271 

is  a  question  of  fact.  And  also  whether  a  way  is 
continuous,  in  deciding  whether  an  injur}  had  oc- 
curred on  the  same  way  where  he  had  made  repairs; 
to  be  mferred  from  other  matters  of  fact,  as  the  dis- 
tance from  the  phice  where  plaintiif  was  hurt  to  the 
place  of  repairs,  the  length  of  time  the  way  has  been 
used,  the  locality,  whether  in  the  city  or  country,  and 
whether  there  are  intersecting  roads  or  streets.^- 

§  308.  Whether  revenue  stamps  have  been  can- 
celled, it  seems,  is  a  question  of  fact.  And  where  a 
note  has  the  full  amount  of  stamps  cancelled  by  ini- 
tials, and  fraud  is  charged  against  the  note,  it  goes 
to  the  jury  thereon.*^ 

And  whether,  where,  under  revenue  laws,  merchant 
api^raisers  are  appointed  to  review  the  decision  of 
public  appraisers,  the  examination  of  samples  drawn 
some  weeks  before  their  appraisement,  was  a  substan- 
tial compliance  with  the  law  which  required  them  to 
examine  one  package,  at  least,  of  every  ten  packages 
of  goods,  wares,  and  merchandise,  is  a  question  of 
fact.^^ 

§  309.  In  an  action  of  trespass  against  an  officer,  it 
is  for  the  jury  to  decide  whether  he  acted  in  good 
faith,  believing  himself  to  be  acting  in  accordance 
with  the  statute.*^ 

And  in  trespass  generally,  it  is  a  question  of  fact 
whether  it  was  committed  under  cu'cumstances  of 
aggravation.^^ 

*2  Gilpatrick  v.  City,  51  Me.  ^  Tarlington    v.   Spencer,   4 

185.  Hurl.  &  Nor.  859. 

43  Rces  V.  Jackson,  64  Pa.  St.  ^^  Hawk  v.  Ridgway,  33  111. 

491.  475. 

■^^  Converse,   Adm'r,   v.    Bur- 
gess, 18  How.  (U.  S.)  416. 


272  QUESTIONS   OP   LAW   A2ny   FACT.  [Pakt  T. 

And  where  an  action  is  brought  for  the  vahic  of  a 
horse,  which  plaintiff  claimed  died  of  sudden  fright 
from  the  explosion  of  a  fire  cracker  under  him,  and 
the  defendant  claims  died  of  the  heat  and  over- 
driving, it  is  a  question  of  fact  what  caused  the 
animal's  death.'"' 

§  310.  The  pecuniary  value  of  one  person's  life  to 
another  is  not  susceptible  of  precise  proof;  and  in  an 
action  against  a  railroad  company  by  an  administrator, 
or  next  of  kin,  for  the  killing  of  the  intestate,  it  is 
held  to  be  for  the  jury;  the  court  exercising  only  so 
far  a  supervision  as  to  see  that  their  verdict  is  not 
evidently  the  result  of  passion  or  prejudice.^^ 

§  311.  Where  a  judgment  under  an  award  is  set  up 
in  defence  as  a  bar  to  an  action,  it  is  for  the  jury  to 
say  whether  the  claim  in  suit  was  included  in  the 
award. *^ 

And  whether  a  claim  was  objected  to,  or  not,  when 
rendered.'*^ 

§  312.  In  an  action  for  damages  for  a  failure  to 
convey  real  estate,  it  is  a  question  of  fact  whether  the 
vendor  acted  in  good  faith  therein,  or  wilfully  neg- 
lected or  refused.''^ 

§  313.  Also  the  dedication  of  premises  for  a  home- 
stead; which  is  defined  to  be  "the  dwelling-place  of 
the  family,  where  they  permanently  reside.  By  the 
common  law,  such  residence  would  raise  the  presump- 
tion that  the  premises  so  held  were  the  homestead; 

^"  Conklin    v.   Thompson,    18  *^  Cunningham  v.  Foster,  49 

Barb.  220.  Me.  68. 

48  R.   R.  V.  Shannon,  Adm'r,         ^o  pjeld  v.  Ried,  21  Ga.  327. 
43  111.  347  "  Sweem  v.  Steele,  5  Clarke 

(Iowa)  356. 


CiiAP.  XXI.]  MISCELLANEOUS   ITEMS.  273 

and  every  one  would  be  bound  to  take  notice  of  the 
character  of  the  occupant's  claim."  ^~ 

§  314.  Whether  particular  persons  are  trustees  of  a 
religious  corporation,  is  for  the  jury  to  determine,  as 
to  their  capacity  to  sue  to  recover  real  estate  of  the 
society.^^ 

And  whether  a  private  trust  has  been  fulfilled ;  as 
where  one,  just  before  his  death,  away  from  home, 
delivered  his  money  to  another,  to  be  paid  over  by 
the  receiver  to  the  family  of  the  owner,  and  the 
trustee  is  afterwards  sued  by  the  administrator,  on 
the  ground  that  he  had  not  fully  accounted,  it  was 
held  for  the  jury  to  determine  whether  the  facts  and 
circumstances  proved  that  the  deceased,  at  the  time 
of  his  death,  had  more  money  in  his  possession  than 
the  defendant  had  accounted  for,  and  whether  or  not 
there  was  sufficient  prima  facie  evidence  in  the  case 
against  the  defendant  to  call  upon  him  to  explain  how 
it  was  that  he  received  no  more  money  from  the  de- 
ceased.^* 

§  315.  As  to  the  sufficiency  of  the  travelled  path 
of  a  highway,  it  is  a  question  of  fact;  and  in  a  case 
where  an  action  was  brought  against  a  town  for  an 
injury,  and  there  was  conflicting  evidence  as  to  the 
condition  of  the  road,  and  the  i^rudence  of  the  plain- 
tiff, it  was  held  error  in  the  court  to  charge  the  jury, 
as  a  matter  of  law,  that  the  defendants  were  entitled 
to  a  verdict,  if  the  travelled  path  was  well  beaten  to 

52  Cook  V.  McChristian,  4  ^  Eames  v.  Blackhart,  12 
Cal.  26.  III.   196. 

^^  Presbyterian     Society     v. 
Smithers,  12  0.  St.  251. 

18 


274  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

such  a  width  that  the  plaintiff  might  conveniently 
have  passed  at  any  specified  distance  from  its  margin 
at  which  the  injury  was  received/'^ 

§  316.  The  existence  of  a  foreign  corporation  is 
matter  of  fact;  and  in  this  regard  the  states  of  the 
Union  are  foreign  to  each  other.^® 

§  317.  The  variation  of  a  compass  in  surveying, 
and  the  degree  of  it,  are  questions  for  the  jury;  and 
upon  evidence  concerning  the  degree,  the  court  can- 
not properly  decide  that  the  evidence  offered  by  one 
party  is  better  than  that  ofiered  by  the  other,  in  order 
to  guide  the  jury  in  determining  whether  any,  or  what, 
allowance  shall  be  made  for  the  variation .^^ 

§  318.  It  is  held  that  where  a  receipt  of  a  guardian 
is  expressed  to  be  in  full  of  a  ward's  distributive  share 
of  an  estate,  the  question  whether  the  receipt  is  in 
full,  or  not,  is  for  the  jury.'^^ 

§  319.  Also  the  diversion  of  trade,  as  in  a  case  in 
New  York,  of  which  the  following  is  the  syllabus  of 
the  reporter:  "The  defendants,  a  manufacturing  com- 
pany, having  a  store  of  goods,  agreed  with  the  plain- 
tiff to  sell  the  same  to  him  for  a  specified  sum,  a  part 
of  which  was  to  be  paid  in  cash,  and  the  remainder  in 
six,  nine,  and  twelve  months,  with  interest.  It  was 
also  agreed  that  if  the  trustees  of  the  defendants  then 
in  ofiSce  should,  within  a  specified  time,  cease  to  have 
the  management  of  the  defendants'  business,  and,  by 
reason  thereof,  the  general  trade  of  the  hands  in  the 
employ  of  the  company  should  be  diverted  from  the 

^  Sessions  v.  Town  of  New-  ^"  Harlan    v.   Brown,   2    Gill 

port,  23  Vt.  11.  (Md.)  481. 

^  Lindauer  v.  Insurance  Co.  ^  Binion  v.  MiUer,  27  Ga.  83. 
8  Eng.  (Ark.)  461. 


Chap.  XXI.]  MISCELLAJSTEOUS   ITEMS.  275 

plaintiff's  store,  and  the  plaintiff  should  sustain  dam- 
age thereby,  the  defendants  should  pay  him  the  sum 
of  three  hundred  dollars,  or  discount  the  amount  from 
any  sum  the  plaintiff  might  owe  the  defendants.  At 
the  time  of  making  this  agreement,  the  affairs  of  the 
defendants  were  managed  by  a  board  of  five  trustees. 
Soon  afterwards,  three  of  the  trustees  resigned,  and 
other  persons  were  appointed  in  their  places;  one  of 
whom  was  a  merchant  occupying  a  store  adjoining 
that  of  the  plaintiff,  and  who  became  the  treasurer  of 
the  defendants.  After  his  appointment,  much  of  the 
trade  of  the  hands  in  the  defendants'  employ  went  to 
his  store.  In  an  action  to  recover  the  three  hundred 
dollars  mentioned  in  the  agreement,  the  plaintiff  al- 
leged that  a  majority  of  the  trustees  in  office  when  he 
made  his  purchase,  had  ceased  to  have  the  manage- 
ment of  the  affairs  of  the  company,  and  that,  by  reason 
thereof,  the  general  trade  of  the  hands  in  the  employ 
of  the  company  had  been  diverted  from  his  store,  and 
that  he  had  thereby  sustained  damage.  It  was  held 
that  the  agreement  was  valid  and  binding,  and  that  it 
should  have  been,  submitted  to  the  jury  to  determine 
whether  the  general  trade  of  the  hands  had  been  di- 
verted from  the  plaintiff's  store;  and  if  it  had,  then 
whether  such  diversion  had  taken  place  in  conse- 
quence of  the  change  in  the  board  of  trustees,  and 
whether  the  plaintiff  had  sustained  damage  thereby; 
and  that  if  the  verdict  were  in  favor  of  the  plaintiff' 
on  all  these  questions,  he  would  be  entitled  to  recover 
the  amount  claimed  as  a  deduction  from  the  price  of 
the  goods."  ^^ 

59  De  Groff  v.  Linen  Thread  Co.  24  Barb.  3^5. 


276  QUESTIONS    OF   LAW   AND    FACT.  [Paut  I. 

§  320.  The  question  of  the  organization  of  a  connty, 
in  order  to  determine  whether  attachments  were  levied 
within  the  jurisdiction  thereof,  is  a  question  of  fact.*^^ 

§  321.  Wliether  there  is  an  error  in  the  record  of 
a  judgment,  also.*^^ 

§  322.  And  whether  particular  persons  are  mem- 
bers of  an  association  in  trade,  and  hence  entitled  to 
sue  as  such."' 

§  323.  In  the  estimation  of  damages  where  a  rail- 
road company  is  sued  for  the  killing  of  a  minor  son, 
the  jury  are  only  to  determine,  as  well  as  they  can,  the 
pecuniary  value  of  his  services  during  his  minority,  in 
Pennsylvania."^  And  in  the  absence  of  aggravation 
in  trespass,  compensation  is  the  measure  by  which 
they  are  to  decide.*^^  Wliether,  in  a  particular  case, 
the  cutting  of  one  hundred  and  eighty-two  timl3er 
trees  entitled  the  party  to  more  than  nominal  damages, 
was  held  properly  submitted  to  a  jury."^  Whether  a 
party  shall  recover  interest  as  damages,  on  breach  of 
a  contract  to  deliver  merchandise,  is  also  for  a  jury.'"'"' 
And  whether  any  damage  was  sustained  in  an  actual 
trespass  or  not."^  Damages  in  official  breach  of  duty, 
also.^  Wherever  an  inquiry  into  fact  is  necessary  in 
order  to  award  damages,  the  court  cannot  assess,''^ 
unless  on  agreement  of  parties. 

60  Craig  i;.  Grant,  6  Mich.  447.         ^6  p^na   v.   Fiedler,   1  E.  D. 

61  Weed  V.  Weed,  25  Conn.     Smith,  463. 

344.  ^"  Nicholson  v.  R.  R.  22  Conn. 

C2  Smith  V.  Hollister,  32  Vt.  74. 
703.  ^^  State,   rel,  v.  Jolinson,   1 

63  R.  R.  V.  Zebe,  33  Pa.  St.  330.  Carter  (Tnd. )  158. 

64  Nagle  V.  MuUison,  34  Pa.  69  Weathers  v.  Mudd,  12  B. 
St.  52.  Mon.  (Ky.)  113. 

65  Archibald  v.  Davis,  4  Jones 
(N.  C.)  138. 


Chap.  XXII.]  EVIDENCB.  277 

CHAPTEK  XXn. 

Evidence. 

The  subject  of  evidence,  being  a  general  one,  and 
so  interwoven  through  the  whole  range  of  judicial 
proceedings,  I  have  thought  it  appropriate  to  close  up 
this  first  part  of  the  present  work  with  it,  as  a  kind 
of  connecting  bond  or  clasp  for  the  whole.  A  few 
of  the  items  introduced  here,  necessarily  involve  a 
slight  repetition  of  some  things  which  have  before 
been  alluded  to  incidentally;  yet  here  they  will  be 
more  distinct,  being  set  out  directly  in  their  imme- 
diate relations. 

§  324.  In  general,  the  competency  of  witnesses  is 
to  be  determined  by  the  court,  without  the  aid  of  the 
jury.  And  where  interest  is  a  disqualification  in  a 
witness,  the  jury  cannot  reject  the  testimony  of  one 
who  has  been  pronounced  competent  by  the  court, 
but  whom  they  judge  to  be  interested  in  the  event.^ 
And  so  the  court  is  to  judge  whether  a  witness  offered 
has  sufficient  capacity  to  understand  the  obligation 
of  an  oath,  or  the  penalty  for  false  swearing.^  And  a 
court  cannot  admit  a  witness,  and  then  instruct  the 
jury  to  disregard  his  testimony  if  they  think  him  dis- 
qualified.*' 

But  there  is  a  striking  exception  in  "New  Hamp- 
shire, where,  in  a  doubtful  case,  it  is  held  that  the 

1  Wickliffe  v.  Lynch,  36  111.  2  D^,ncan  ?».Welty,20  Ind.  44. 
211.  3  Tabor  v.  Staniels,  2  Cal.  240. 


278  QUESTIONS    or   law   and    fact.  [Part  I. 

court  has  authority  to  refer  the  matter  of  disqualifiea- 
tion  on  the  ground  of  interest  to  the  jury  for  deter- 
mination.^ 

§  325.  Also,  in  general,  the  admissibility  of  evi- 
dence wholly  depends  upon  the  judgment  of  the  court, 
according  to  nearly  all  the  authorities.  But  there  are 
exceptions  to  this,  also.  The  court,  in  Maryland,  holds, 
that  where  the  preliminary  proof  is  decidedly  doubt- 
ful, it  is  proper  to  submit  the  matter  to  a  jury  to  de- 
cide.^ And,  in  Kentucky,  it  is  held  that  where  the 
preliminaiy  proof  is  not  merely  preliminary  to  the 
question  of  admissibility,  but  is  otherwise  material  in 
the  case,  it  may  all  go  together  to  the  jury;  and  par- 
ticularly in  the  matter  of  written  instruments.''  And 
evidence  given  in  unpeachment  of  a  witness  is  always 
for  the  jury  to  determine  upon.  And  it  is  held  that 
what  weight,  if  any,  should  be  given  to  the  statements 
of  a  witness  who  has  been  impeached  by  general  evi- 
dence, or  the  uncontradicted  statements  of  a  witness 
whose  testimony  has  been  successfully  attacked  on 
some  points  by  other  witnesses,  is  a  question  for  them ; 
and  that  it  is  error  to  instruct  a  jury  in  a  manner 
which  assumes  that  there  has  been  no  impeachment 
of  a  witness,  and  that  there  is  but  one  mode  of  im- 
peaching a  witness,  namely,  by  evidence  of  general 
bad  character.^ 

§  326.  The  credibility  of  testimony  belongs,  on  the 
other  hand,  to  the  jury,  as  their  peculiar  province; 
and  on  this  there  is  no  conflict  of  authority.     And  if 

*  Rich  V.  Eldridge,  42  N.  H.  ^  Swearingen  v.  Leach,  7   B. 

156,  and  cases  cited.  Mon.  287. 

^  Funk's   Lessee  v    Kincaid,  '  Terry  v.  State,  13  Ind.  72. 

5  Md.  418. 


Chap.  XXII.]  EVIDENCE.  279 

there  is  but  one  witness  to  a  material  point  in  a  case, 
and  his  evidence  is  self-contradictory,  the  jury  have  a 
right  to  reject  it  wholly.®  And  if  the  juiy  credit  a 
witness  who  is  by  the  court  considered  unworthy  of 
credit,  it  is  no  ground  for  a  new  trial.®  ISTor  are  they 
obliged  to  believe  a  witness  merely  because  he  is  not 
impeached  by  other  witnesses. ^^  And  the  credibility 
of  an  accomplice,  like  that  of  any  other  witness,  is  a 
question  for  the  jury;  and  they  may  convict  on  that 
alone."  And  it  is  held  also,  that  the  maximfcdsus  in 
uno,  falsus  in  omnibus,  is  subject  to  qualifications;  ^^ 
so  that  even  wilfully  false  and  corrupt  testimony  on  a 
material  point  does  not  so  discredit  a  witness  abso- 
lutely, as  to  any  other  fact  he  may  testify  to,  that,  as 
matter  of  law,  the  jury  are  bound  to  disregard  him  in 
all;  '^  although,  of  course,  they  are  authorized,  in  their 
discretion,  to  reject  the  whole  in  such  case.'* 

And  the  judge  cannot  grant  a  nonsuit  on  his  as- 
sumption that  the  plaintiff's  witness  cannot  be  be- 
lieved.'^ 

And  whether  a  witness  has  impaired  the  credibility 
of  his  testimony  by  his  manner  in  testifying,  is  also  a 
question  for  the  jury  alone.'*'  And  also,  by  an  im- 
moral and  degraded  life,  and  disregard  to  religious 
sentiment,  and  character  and  reputation.'^ 

8  Strozier  v.  Carroll,  31  Ga.  ^^  Merrill  v.  Inhab.  of  White- 
657.     Lyon,  J.,  dissenting.  field,  41  Me.  414. 

9  Newcomb  v.  State,  37  Miss.  ^^  Gillett  y. Wimer,  23  Mo.  78. 
406.  15  Merritti;.Lyon,3  Barb.112. 

10  Coats  V.  Adm'r,  23  Tex.  le  pjerce  v.  Selleck,  18  Conn. 
613.  331. 

11  People  V.  Jenness,  5  Mich,  i"  Bowman  v.  Executor,  1 
330.  Strobh.  (S.  C.)  249. 

12  Parsons  v.  Huff,  41  Me.  413. 


280  QUESTIONS   OF   LAW  AND   FACT.  [Part  I. 

§  327.  The  particular  weight  of  testimony,  and  of 
evidence,  belongs  mainly  to  the  jury.  But  a  judge 
may  define  the  weight  which  the  law  attaches  to  a 
whole  class  of  testimony,  as,  for  example,  that  of  ac- 
complices;'^ although  he  cannot  single  out  certam 
testimony,  and  tell  the  jury  that  it  is  entitled  to  great, 
or  little,  weight.'®  And  it  belongs  to  the  court  to 
estimate  the  legal  effect  of  written  evidence,'^"  leaving 
the  practical  bearing  to  the  jury.  And  the  sufficiency 
of  corroborative  evidence  to  sustain  the  testimony  of 
an  accomplice,  is  for  the  jury  on  the  general  rule.~' 
And  so  whether  any  particular  part  of  the  evidence  is 
weak  or  strong,  even  as  regards  a  written  instrument." 

It  is  held  that  an  unimpeached  witness  may  be  dis- 
regarded in  estimating  the  sufficiency  of  testimony, 
because  of  his  manner,  or  the  inherent  improbability 
of  his  statement,  and  that,  too,  when  he  is  the  witness 
of  the  party  against  whom  the  statement  militates."^ 

It  has  been  held,  also,  that,  it  being  for  the  jury 
alone  to  determme  what  amount  of  evidence  is  need- 
ful to  produce  conviction  in  theu'  minds,  it  was  an 
invasion  of  their  province  in  the  court  to  charge  them 
that,  in  all  civil  cases,  all  that  is  required  is,  that  the 
proof  shall  preponderate  in  favor  of  one  party  or  the 
other;  and  that  they  must  find  according  to  the  pre- 
ponderance of  the  proof,~^     And  to  instruct  that  the 

^^  Commonwealth  v.  Larrabee,         ^  Keister  v.    Miller,   25   Pa. 

99  Mass.  415.  St.  483. 

19  State  V.  Hundley,  46  Mo.  23  Cheatham  v.  Riddle,  12 
422.  Tex.  118. 

20  San  Antonio  v.  Lewis,  9  ^4  Mays  v.  Williams,  27  Ala. 
Tex.  69.  212. 

21  State  V.  Cox,  10  Iowa,  351. 


Chap.  XXII.]  EVIDENCE.  281 

testimony  of  an  accomplice  is  corroborated  by  the  tes- 
timony of  another  witness/^^ 

§  328.  Dying  declarations  are  declared  to  be  "  such 
as  are  made  relating  to  the  facts  of  an  injury  of  which 
the  party  afterwards  dies,  under  the  fixed  belief  and 
moral  conviction  that  immediate  death  is  inevitable; 
without  opportunity  for  repentance,  and  without  hope 
of  escaping  the  impending  danger;"  and  are  held  to 
be  admissible  on  the  principle  that  "  they  are  made  in 
a  condition  so  solemn  and  awful  as  to  exclude  the 
supposition  that  the  party  making  them  could  have 
been  influenced  by  malice,  revenge,  or  any  conceivable 
motive,  to  misrepresent;  and  when  every  uiducement, 
emotion,  and  motive  is  to  speak  the  truth,  —  in  other 
words,  in  view  of  impending  death,  and  under  the 
sanctions  of  a  moral  sense  of  certain  and  just  retri- 
bution." ~*^  And  the  admissibility  is  for  the  court,  as 
other  evidence. 

There  must  be  no  doubt  of  speedy  death;  and  so, 
where  the  declarant  said  she  knew  she  must  die,  but 
if  she  lived  to  get  well,  &c.,  the  declarations  uttered 
were  held  inadmissible."^ 

It  is  held,  in  Georgia,  in  exception  to  the  general 
rule,  that  when  a  'prima  facie  case  is  made  out,  the 
evidence  may  go  to  the  jury  to  be  passed  upon  as  to 
whether  or  not  the  declarations  were  made  in  imme- 
diate prospect  of  death."^  And,  in  I^ew  Jersey,  ut 
infra. 

It  appears  that  dying  declarations  may  be  brought 

25  Noland  v.  State,  19  Ohio,  27  gtate  v.  Center,  35  Vt.  385. 
181.  28  Campbell  v.  State,  11  Ga. 

26  Starkey  v.  People,   It  III.  316. 
21,  and  cases  cited. 


282  QUESTIONS    OF    LAW   AND    FACT.  [Part  I. 

in  as  secondary  evidence,  where  prior  written  decla- 
rations sworn  to  before  a  magistrate  have  been  lost, 
or  become  unavailable.^^  And  where  the  dying  decla- 
rations themselves  have  been  reduced  to  writing,  the 
writing  must  be  produced  as  the  best  evidence,  when 
duly  authenticated.^" 

The  weight  of  the  declarations  as  testimony,  when 
introduced,  belongs  to  the  jury;  and  depends  upon  a 
variety  of  circumstances,  which  may  tend  to  increase 
or  diminish  it,  as  the  mental  and  physical  condition 
of  the  sufferer  when  the  declarations  w^ere  made,  his 
memory,  the  nature  and  extent  of  the  disease,  and  the 
accuracy  with  w^hich  they  appear  to  have  been  re- 
ported by  the  witnesses."^^  It  is  held,  m  ISTew  Jersey, 
that,  notwithstanding  declarations  may  have  been  ad- 
mitted by  the  court  as  djdng  declarations,  the  jury 
are  authorized  to  reject  them,  should  their  opinion  be 
that  they  were  not  made  under  the  apprehension  of 
impending  death."^^  It  seems,  that  if  leading  questions 
are  asked,  and  the  dying  person,  unable  to  speak, 
gives  a  sign  in  affirmation,  as  by  squeezing  the  hand 
of  the  questioner,  it  is  competent  to  go  to  the  jury  to 
be  weighed  by  them."^^ 

§  329.  "Where  evidence  is  all  one  way,  so  that  there 
is  no  conflict  therein,  the  case  is  not  to  be  given  to 
the  jury,  according  to  nearly  all  the  authorities;  al- 
though it  is  held  the  other  way  in  Maryland  and 
lowa.^*     And  it  is  held  that  even  the  issue  of  negli- 

29  People  t».  Glenn,  10  Cal.  36.  ^Commonwealth    v.    Casey, 

30  Collier  v.  State,  20  Ark.  45.     11  Cush.  421. 

21  Lambeth  v.  State,  23  Miss.  ^  Oleson    v.   Ilenrickson,   12 

358.  Iowa,  222  ;  Birney  v.  Telegraph 

32  Donelly  v.  State,  5  Dutch.  Co.  18  Md.  341. 
603. 


Chap.  XXII.]  EVTDENOE.  283 

gence  comes  within  the  rule ;  ^^  and  that  to  act  other- 
wise is  to  submit  to  the  jury  a  question  of  law,  and 
deprive  the  defendant  of  his  right  to  have  the  judge 
determine  the  law.'^^ 

Wliere,  however,  there  is  any  substantial  proof,  it 
must  go  to  the  jury,  however  strong  or  persuasive 
may  be  the  countervailing  evidence  ;^^  although,  in 
the  latter  case,  it  appears  the  court  may  express  an 
opinion  upon  it.^^ 

§  330.  As  to  the  meaning  of  a  witness,  the  Supreme 
Court  of  Vermont  remark,  "  It  would  be  a  noticeable 
innovation  if  it  should  now  be  held  that  the  court 
could  not  lawfully  state  to  the  jury  Ms  impressions 
and  understanding  as  to  how  a  witness  meant  to  be 
understood,  in  the  testimony  he  had  given,  when  some 
question  had  arisen  on  that  subject,  and  indicate  how 
such  impression  and  understanding  were  derived."  ^^ 
But  when  a  witness  states  that  he  has  an  impression 
as  to  the  matter  of  inquiry,  it  is  competent  evidence, 
if  he  means  that  he  has  some  recollection,  however 
slight,  founded  on  his  personal  knowledge,  and  the 
jury  are  to  determine  whether  such  is  his  meaning, 
unless  it  is  apparent  to  the  court  from  the  subject  of 
his  testimony,  and  his  other  statements  in  connection 
with  it,  that  he  does  not  intend  so  to  be  understood.'**' 

§  331.   Where  the  evidence  of  a  foreign  law  con- 

^5  Dascomb  v.  R.  R.  27  Barb.  ^^  Dougherty    v.    Stevenson, 

222.  20  Pa.  St.  210. 

^  Carpenter    v.     Smith,     10  ^^  Missisquoi  Bank  v.  Evarts, 

Barb.  663.  45  Vt.  299. 

37  Express  Co  v.  Will,  64  Pa.  "o  gt^^e  v.  Flanders,  38  N.  H. 

St.  201.  332. 


284  QUESTIONS    or   law   and   fact.  [Part  I. 

sists  entirely  of  a  judicial  opinion,  the  question  of  its 
construction  and  effect  is  for  the  court.^^ 

The  materiality  of  a  fact  in  a  prosecution  for  per- 
jury is  a  question  of  law.^^ 

And  whether  the  proposed  testimony  of  a  wife 
would  lead  to  a  violation  of  marital  confidence.'*'^ 

And  whether  the  records  and  papers  offered  in  evi- 
dence to  prove*  the  legal  establishment  of  a  road,  are 
sufficient.^ 

And  evidence  of  the  loss  of  a  subscription  book  or 
other  document,  preparatory  to  the  admission  of  sec- 
ondary evidence.*^  And  of  a  written  contract,  bond, 
or  note.^*^ 

And  the  question  of  variance  between  the  pleadings 
and  proof,  in  slander.*^  And  in  other  cases ;  and  in 
regard  to  written  evidence/*^ 

And  whether  a  verdict  rendered  was  manifestly 
found  from  prejudice,  bias,  or  improper  influence,  or 
a  mistake  of  law  or  fact.*^ 

§  332.  The  jury  must  find  on  evidence,  and  are 
not,  in  any  instance,  to  act  as  "  amicable  compound- 
ers." ^°  But  in  actions  of  trespass,  they  may  some- 
times view  the  premises ;  but,  it  is  said,  not  to  "  base 
their  verdict  on  such  examination,  or  become  silent 

41  Kline  v.  Baker,  99  Mass.  ^^  Glassell  v.  Mason,  32  Ala. 

253.  •719. 

^  State  V.  Williams,  30  Mo.  ^~  Birch  v.   Benton,  26   Mo. 

36t.  154. 

43  Cook  V.  Bennett,  51  N.  H.  *«  Oxley  v.  Storer,  51  111.  159. 
85.  49  West  Gardiner  v.  Farming'- 

44  State  V.  Prine,  25  Iowa,  232.  dale,  36  Me.  252. 

45  GrafiF  v.  R.  R.  31  Pa.  St.  ^  McWilliams  v.  Town  of 
493.  Plaquemine,  19  La.  An.  74. 


Chap.  XXII.]  EVIDENCE.  285 

witnesses,  as  to  facts  in  relation  to  which  neither 
party  has  an  opportunity  to  cross-examine ;  but  only 
to  enable  them  the  better  to  apply  the  testimony  dis- 
closed on  the  trial."  ^' 

It  is  their  province  to  determine  which  of  two  pa- 
pers is  a  copy  of  a  certain  instrument  of  writing".^- 

And  the  identity  of  an  article  specified  in  a  con- 
tract.'' 

And  they  may  consider  the  non-production  of  a 
writing  shown  to  be  in  the  hands  of  a  party  who  has 
been  duly  notified  to  produce  it.^* 

And  where  what  was  said  at  a  particular  time  in 
the  hearing  of  the  party  is  put  in  evidence,  it  is  for 
the  jury  to  construe  his  silence  or  conduct  at  that 
time,  and  draw  such  inference  as  they  judge  proper .'' 

And  whether  an  estoppel  is  proved; ''''  as  whether, 
by  agreement,  a  party  is  estopped  from  clamiing  dam- 
ages.'^ 

§  333.  Whether  any  inducements  were  held  out  to 
procure  a  confession  from  a  person  charged  with 
crime,  is  for  the  court  to  determine  on  the  question 
of  admissibility."^^  And  this  evidence  of  confessions 
is  held  to  be  of  a  low  grade  at  the  best,  and  not  neces- 
sarily even  prima  facie  evidence  of  the  fact  to  which 
they  relate.^'' 

^1  Close  V.   Samm,  2*r  Iowa,  ^  Brown  v.  Bowen,  30  N.  Y. 

508.  541. 

52  Holbrook  v.  Nichol,  36  III.  ^^  Litchfield  v.  Garratt,  10 
163.  Mich.  427. 

53  Pollen  V.  Le  Roy,  30  N.  Y.  ^8  pjfg  ^  Commonwealth,  29 
554.  Pa.  St.  429. 

54  Tobin  V.  Shaw,  45  Me.  349.  59  Stephens    v.   Vroman,    18 

55  Morrill  v.  Richey,  18  N.  H.  Barb.  257. 
299. 


28G  QUESTIONS    OF   LAW   AND   FACT.  [Part  I. 

§  334.  The  declarations  of  a  father  as  to  the  ma- 
ternity of  his  child  are  held  competent  evidence,  to  be 
estimated  by  the  jury."" 

§  335.  It  is  held  that  a  jury  "have  the  right  to 
draw  from  proven  or  known  facts  such  inferences  and 
considerations  as  their  power  of  reason  and  general 
experience  teach  them  to  be  the  usual  or  necessary 
consequence  thereof;  and,  in  so  doing,  to  bring  to 
their  aid  their  experience  of  the  motives  that  govern 
human  action  generally,  or  of  human  action  under  the 
peculiar  circumstances  of  the  case  before  them;  and 
also  their  experience  in  the  daily  transactions  of  life, 
including  necessarily  their  experience  —  if  they  have 
any  —  in  transactions  of  the  nature  of  the  one  out  of 
which  the  cause  before  them  may  have  arisen."  ^^ 

6''  United  States  v.  Sanders,         ^^  Herst    v.   De    Comeau,    1 
Hemp.  (U.  S.)  483.  Sweeney  (N.  Y.)  608. 


I>^IIT  II. 

ON  THE  LAW  OF  INSTRUCTING  AND 
CHARGING  JURIES. 


CHAPTER   I. 

!N"ATimE   OF   INSTRUCTIONS. 

§  336.  The  province  of  insti'uctions  from  the  court 
is  to  inform  the  jury  what  the  law  is,  connected  with 
the  case  in  hand,  and  show  them  how  to  apply  it  to 
the  particular  facts  involved.  It  alwaj^s  embraces 
both  these  particulars.  And  so  where,  in  a  quasi 
criminal  case,  the  court  gave  an  instruction  as  to  the 
general  rule  of  law  relating  to  self-defence,  but 
showed  no  application  thereof  to  the  case  on  trial,  it 
was  judged  erroneous,  and  the  Supreme  Court  re- 
marked thereon,  "  The  charge,  as  given,  informed  the 
jury  what  ^the  great  principle'  of  the  law  of  self- 
defence  is,  and  correctly;  but  that  was  not  all  to 
which  the  defendant  was  entitled.  It  is  not  for  juries 
to  apply  ^  great  principles '  to  the  particular  state  of 
facts  found,  and  thus  make  the  law  of  the  case. 
When  the  facts  are  admitted,  or  proved  and  found,  it 

287 


288  IN^STRUCTIONS   A^T>   CHAKGES.  [Paut  II. 

is  for  the  court  to  say  what  the  law,  as  applicable  to 
them,  is,  and  whether  or  not  they  furnish  a  defence  to 
the  action,  or  a  justification  for  the  injury,  if  that 
be  the  issue.  And  so,  where  evidence  is  offered  by 
either  party  to  prove  a  certain  state  of  facts,  and  the 
claim  is  made  that  they  are  proved,  and  the  court  is 
requested  to  charge  the  jury  what  the  law  is  as  appli- 
cable to  them,  and  what  verdict  to  render,  if  they 
find  them  proved,  the  covirt  must  comply."^  And  it  is  a 
matter  of  great  importance,  to  begin  with,  that  juries 
should  be  really  instructed,  and  not  embarrassed  or 
confused,  by  a  charge  of  the  court  as  to  the  law.^ 
And  in  Iowa  it  is  held  that  a  judge's  duty  is,  even 
without  a  request  of  the  parties,  to  give  a  clear  and 
intelligible  view  of  the  law;  and  the  court  say  in  a 
particular  case,  "  It  was  most  undeniably  one  in  which 
there  should  have  been  clear  instructions  to  the  jury 
as  to  the  law  governing  it,  and  the  rights  of  the  par- 
ties. To  submit  it  to  the  jury  without  any  directions  to 
guide  them,  from  the  court,  would  be  to  reach  a  result 
almost  as  uncertain  as  the  toss  of  a  copper  or  the 
throw  of  dice.  It  may  be  said  that  the  counsel  did 
not  request  instructions,  and  that  therefore  it  was  not 
obligatory  on  the  court  to  give  any.  Such  a  view 
does  not  accord  with  our  conceptions  of  the  functions 
and  duty  of  the  judge.  He  should  see  that  every 
case  goes  to  the  jury  so  that  they  have  clear  and  in- 
telligent notions  of  precisely  what  it  is  that  they  are 
to  decide.     His  charge  is  their  chart  and  compass.""^ 

1  Morris  V.  Piatt,  32  Conn.  82.  3  Owen   v.    Owen,   22    Iowa, 

2  Bait.  &  0.  R.  R.  V.  Resley,     2U. 
14  Md.  442. 


CnAP.  I]  NATUEE   OF   ESTSTRUCTIOl^S.  289 

§  337.  The  charge  should  be  strictly  confined  to 
thfe  law,  and  not  comment  on  the  evidence,  nor  deter- 
mine what  facts  are  or  are  not  proved;*  unless  where 
there  is  no  conflict  of  evidence,  and  the  fact  is  ad- 
mitted or  imdisputed,  in  which  case  a  direct  instruc- 
tion may  be  given,  because  then  the  whole  becomes  a 
question  of  law,°  and  "  there  is  no  reason  or  authority 
for  requiring  a  court  to  throw  doubt  on  a  certainty  in 
charging  a  jury,  for  this  would  tend  to  mislead  and 
confuse,  rather  than  to  instruct,  and  multiply  what 
are  called  the  uncertainties  of  the  law."  However, 
where  there  is  a  conflict  of  evidence,  instructions  are 
not  to  be  deemed  erroneous  merely  because  they  do 
not  include  every  possible,  or  even  available,  aspect 
of  the  law  applicable  to  the  case."  And  where  the 
charge  is  correct  as  far  as  it  goes,  but  does  not  cover 
the  whole  ground,  it  is  the  duty  of  the  parties  to  ask 
additional  charges,  if  they  desire  it.''  And  a  judge  is 
bound  to  instruct  simply  as  to  what  the  law  is,  and 
not  as  to  its  history,  object,  or  purposes;  or  give  an 
exposition  of  its  reasons.^  And,  indeed,  such  exposi- 
tion would  frequently  be  improper;  as  where  the 
court  was  requested  to  embody  in  an  instruction  the 
reasons  given  by  Greenleaf,  in  his  work  on  Evidence, 
why  confessions  or  admissions  ought  to  be  received 
with  great  caution.^ 

§  338.  But  it  is  held  not  allowable  to  give  in  charge 

*  Russ  V.  Steamboat,  9  Iowa,  ''  Farquhar  i».  Dallas,  20  Tex. 

375.  200. 

^  Wisner     v.    Davenport,     5  ^  Lincoln  v.  Wright,    23  Pa. 

Mich.  504.  St.  81. 

6  Linn    v.    Wright,    18    Tex.  ^  State    v.  Turner,  19  Iowa, 

340.  148. 

19 


290  INSTRUCTIONS    AlO)    CHARGES.  [Part  II. 

to  the  jury  certain  specified  sections  of  a  law.  And 
in  a  case  where  this  was  requested,  the  court  sa»d, 
"  Apart  from  the  statute  which  directs  in  what  man- 
ner instructions  may  be  asked,  and  does  not  sanction 
the  mode  proposed,  the  manner  of  asking  the  instruc- 
tions, in  this  instance,  was  novel  and  unprecedented, 
and  was  calculated  to  create  the  apprehension  that 
counsel  desired  rather  to  bewilder  and  mislead  than 
to  enlighten  the  jury  as  to  their  duty.  With  equal 
propriety  might  counsel  have  asked  of  the  court  to 
give  in  charge  to  the  jury  the  entire  law,  or  volume 
of  laws,  in  which  the  provisions  refeiTed  to  were 
contained."  ^"^  It  is  not  objectionable,  however,  that  a 
charge  gives  a  definition  in  the  very  words  of  the 
statute,  but  it  is  proper  to  follow  it  up  with  an  ex- 
planation of  its  legal  meaning  and  effect.  And  so,  in 
a  case  where  a  statement  of  what  constitutes  a  suffi- 
cient testamentary  capacity  was  given  in  the  terms  of 
a  particular  act,  and  the  judge  added  such  an  explana- 
tion, it  was  on  objection  held  correct."  But  a  court 
is  bound  to  charge,  when  requested,  in  conformity 
with  a  particular  statute ;  and  where  a  request  of  this 
kind  was  made,  embracing  the  provision  of  a  statute 
m  substance,  and  was  refused,  and  the  counsel  then 
handed  the  judge  the  volume  of  printed  statutes,  and 
requested  him  to  charge  the  jury  on  a  specified  sec- 
tion, which  was  also  refused,  the  case  was  reversed 
on  that  ground.^^ 

§  339.  And  while  the  application  of  the  law  is  also 

1^  Ryan  v.  Jackson,  11  Tex.         ^  Benedict  v.  Hoggin,  2  Cal. 
403.  386. 

"  Calvin  v.  Warford,  20  Md. 
388. 


Chat.  I]  NATURE   OF   rN^STRUCTIONS.  2f)l 

to  he  pointed  out  by  instructions,  yet  this  gives  the 
judge  no  right  to  draw  inferences  of  fact,  as  well  as 
presumptions  of  law.'^  And  although  a  mere  ex- 
pression of  opinion  of  the  judge  as  to  an  inference 
from  fact  does  not  always  and  necessarily  form  a 
ground  for  exception,  yet  if  he  instructs  them  in  re- 
gard to  such  an  inference  in  such  a  way  that  the  jury 
may  well  understand  that  the  inference  is  matter  of 
law,  which  they  are  not  at  liberty  to  disregard,  it  is 
error/^  But  the  general  and  better  rule  is,  that  a 
judge  should  avoid  all  forms  of  expression  which 
would  even  intimate  his  opinion  on  any  question  of 
fact.^^  And  even  in  a  mixed  question  of  law  and 
fact.^'^ 

But  this  rule  does  not  prohibit  illustrations  in 
charging,  drawn  from  external  facts.  And  where  an 
objection  was,  that  the  judge,  in  his  charge,  narrated 
a  recent  incident  of  a  like  character  with  the  one  on 
trial,  which  had  happened  in  his  dwn  neighborhood, 
and  that  this  was  likely  to  impress  the  minds  of  the 
jury  improperly,  the  court  remarked  thereon,  "  The 
objection  is  substantially  that  the  judge  stated  a  fact 
which  had  not  been  sworn  to  on  the  trial.  But  it  was 
not  stated  as  a  fact  belonging  to  the  case,  and  was 
presented  only  for  the  purpose  of  illustration.  This 
is  a  common  practice  in  our  courts.  !No  intelligent 
juror  can  be  deceived  by  such  illustrations.  And 
whether  the  judge,  in  commenting  upon  the  facts  of 
the  case,  has  made  use  of  too  strong  language,  or  has 

^3  Easterling     v.    State,     30         ^^  Riviere   v.  McCorinick,   14 

Ala.  48.  La.  An.  139. 

"  State    V.   Lynott,   5  R.   I.         ^^  Pettingill  v.  Porter,  5  Al- 

295.  leu,  1 


292  INSTRUCTIONS   AND    CHARGES.  [Part  IL 

gone  too  far  in  using",  by  way  of  illustration,  historical 
or  personal  incidents  of  a  kindred  character  to  those 
on  trial  is  not  for  us  to  say.  He  has  a  right  to  illus- 
trate his  views  as  he  pleases,  and  a  rule  requii'ing 
that  a  rigid  criticism  should  be  applied  to  such  ex- 
pressions would  impose  upon  the  judge  an  unreason- 
able restraint,  and  lead  to  great  inconvenience."  ^^ 

§  340.  And  it  has  been  held  not  to  be  error  for  a 
judge  in  charging  the  jury,  after  correctly  instructing 
them  upon  all  the  points  presented  by  counsel,  to  add 
that  it  was  the  fairest  and  best  way  for  the  jiuy  to 
consider  and  determine  the  case  mainly  upon  the 
grounds  which  had  been  taken  and  discussed  by  the 
counsel  in  the  argument. 

§  341.  ISror  does  the  expression  of  an  opinion  of 
the  judge  against  the  policy  of  the  law  vitiate  an  in- 
struction; as  where  the  charge  was,  that  the  jur}- 
were  in  a  criminal  case  the  judges  of  the  law,  as  well 
as  the  facts,  and  the  judge  remarked,  "  I  Avill  charge 
you,  gentlemen  of  the  jury,  that  that  is  the  law  of 
this  case,  that  it  is  the  law  of  the  State  of  Louisiana, 
as  decided  by  the  Supreme  Court,  though,  in  m}' 
opinion,  it  is  bad  law,"  and  objection  was  made  to  it 
as  calculated  to  prejudice  the  case,  the  Supreme 
Court  said,  "It  is  now  contended  that  the  verdict 
should  be  avoided  on  account  of  the  remark  of  the 
judge,  that  the  law,  as  he  understood  it  to  have  been 
decided  by  this  court,  was  ^bad  law.'  We  do  not 
think  so.  Assuming,  what  is  not  strictly  correct, 
that  this  court  has  ever  said  that  it  would  be  right  to 
tell  a  jury  that  ^  they  are  judges  of  the  law  and  fact 

1"  Masters  v.  Town  of  Warren,  27  Conn.  300. 


Chap.  I.:  NATURE    OF    INSTKUCTIONS.  293 

in  a  criminal  case/  without  adding  any  explanation  as 
to  the  relative  provinces  of  the  court  and  jury,  we 
cannot  perceive  that  the  prisoner  is  prejudiced  by  the 
district  judge's  expression  of  his  personal  opinion 
that  this  law  was  '  bad  law ; '  for  he  at  the  same  time 
told  the  jury  that,  whether  good  or  bad,  it  was  the 
law  of  the  case  before  them,  which  was  as  much  as 
to  tell  them  that  his  personal  opinion  of  the  correct- 
ness or  policy  of  the  law  should  not  weigh  with  them, 
but  they  must  take  the  law  as  expounded  by  this 
court. 

"  But  we  think  the  learned  judge  misapprehended 
the  opinion  of  this  court,  and,  by  the  unqualified 
charge  he  gave,  conceded  more  to  the  prisoner's 
counsel  than  was  necessary.  "We  have  said  that  *  in 
criminal  as  in  civil  cases  the  jury  are  judges  of  the 
law,  as  well  as  of  the  facts,  but  not  in  precisely  the 
same  sense.  They  are  the  exclusive  judges  of  the 
facts;  they  are  subordinately  judges  of  the  law;  be- 
cause a  general  verdict  of  *  guilty '  or  '  not  guilty ' 
requires  a  decision  upon  both  law  and  fact.  But  it 
would  be  absurd  to  require  the  judge  to  instruct  the 
jury  in  the  law  governing  the  case,  and  then  say  they 
may  pay  no  heed  to  it,  if  it  suits  their  caprice  to  over- 
rule it ;  it  would  be  absurd  to  allow  the  prisoner  to 
except  to  the  charge  of  the  judge,  and  ask  this  court 
to  reverse  a  verdict  of  guilty  merely  because  the 
judge  erred  in  his  charge,  if,  under  the  theory  of 
our  law,  a  charge  by  the  court  was  nothing  more  than 
an  argument  of  counsel,  to  be  heeded  or  not  by  the 
jury,  as  it  happened  to  strike  their  judgment.  The 
jury  should  listen  attentively  and  respectfully  to  the 


294  INSTKUCTIONS   AIO)    CHAliGES.  [Part  IL 

law  as  expounded  by  the  court,  because  they  are 
ex[3ected  to  apply  the  law,  as  thus  expounded,  to  the 
facts  which  they  may  imd.  They  are  not  under  a 
compulsion  to  take  the  instructions  of  the  court  as 
law,  but  they  are  expected  to  do  so,  and  it  must  be 
an  extraordinary  case  indeed  where  they  would  be 
justified  in  disregarding  the  instructions  of  the  judge, 
who  sits  indifferent  between  the  state  and  the  pris- 
oner, the  authorized  expounder  of  the  law.  If  the 
jury  assume  to  interpret  the  law  in  opposition  to  the 
charge  of  the  judge,  there  is  no  remed}^,  even  if  jus- 
tice be  outraged  thereby;  if  they  heed  the  instruc- 
tions, and  the  instructions  are  right,  justice  is  done; 
if  they  are  wrong,  and  prejudicial  to  the  prisoner,  he 
has  his  remedy  by  a  bill  of  exceptions,  and  an  appeal. 
We  think  some  such  explanation  as  this  should  be 
added  when  a  court  instructs  a  jury  that  they  are 
judges  of  the  law  and  the  fact."  '^ 

I  have  been  unwilling  to  divide  this  long  extract 
because,  although  it  departs  from  the  specific  topic 
of  this  section,  it  bears  directly  upon  the  subject  of 
the  present  chapter. 

§  342.  It  is  the  duty  of  the  court  to  present  to  the 
jury  the  substantial  issues  in  a  cause,  so  that  it  has 
been  held  error  to  read  the  whole  declaration,  both 
material  and  immaterial  allegations,  and  then  instruct 
the  jury  that  if  they  find  "  these  statements  "  sustained 
by  proof,  they  should  find  for  the  plaintiff,  since  the 
court  should  separate  the  material  from  the  immaterial 
statements,  and  present  to  the  jury  only  the  real,  sub- 
stantial issues.^^     It  is  no  part  of  the  duty  of  a  jury, 

18  State  V.  Scott,  12  La.  x\n.  ^^  McLean  v.  Clark,  47  Ga.  24. 

386. 


Chap.  I.]  NATUBE    OF   INSTRITCTIOlSrS.  295 

nor,  indeed,  have  they  any  right,  to  determine  from  the 
pleadings  what  is  admitted  and  what  denied.  It  is 
the  province  of  the  court  alone  to  examine  the  plead- 
ings, and  if  any  of  the  allegations  are  to  be  taken  as 
true,  for  want  of  the  necessary  denial,  to  state  it  so  to 
the  jury.^**  An  instruction,  also,  may  be  confined  to  a 
single  issue  among  many,'  if  the  decision  upon  it  will 
settle  the  case.  And  where  an  objection  was  made  in 
such  a  case,  the  court  remarked,  "  Such  directions  are 
not  only  frequently  convenient  in  practice,  but  they 
conform  to  the  usages  in  the  English  courts,  where  it 
is  not  infi'equent  for  the  judges  to  stop  the  general 
course  of  a  trial,  and  to  direct  a  finding  upon  some 
matter  which,  decided  in  a  given  way,  is  conclusive 
of  the  case  on  the  merits.  It  would  be  a  useless  con- 
sumption of  time  to  proceed  to  hear  and  try  various 
issues  and  matters  in  dispute,  when  the  decision  of 
one  fact  is  conclusive  of  the  whole  case  on  the 
merits."  ^^  And,  indeed,  in  any  case,  it  is  held  that 
the  mere  omission  of  a  court,  in  a  charge,  to  gi\'c  in- 
structions on  all  the  points  involved,  is  no  ground  of 
objection,  where  a  party  did  not  request  any  further 
charge.'^^ 

Yet  nothing  which  falls  short  of  giving  a  jury  dis- 
tinct ideas  as  to  material  and  immaterial  allegations, 
and  of  the  issues  actually  formed,  is  to  be  regarded 
as  a  sufficient  charge.  And  so  an  instruction,  which 
asserted  that  "  every  fact  material  to  the  matters  in 
issue,  which  is  stated  in  defendant's  answer,  so  far  as 

2<^  McKinney  v.  Hartman,  4  ^i  Broadus  v.  Nelson,  16  Cal. 
Iowa,  155;  Reid  v.  Mason,  14     81. 

Ind.  642.  ^  Express  Co.  v.  Kountze,  8 

Wall.  354. 


296  INSTRUCTIONS   AND    CHAEGES.  [Pjrt  II. 

it  sets  up  a  counter  claim  against  plaintiff,  and  which 
is  not  denied  by  plaintiff's  answer,  the  jury  are  bound 
to  receive  as  true,"  was  condemned  as  erroneous.-^ 

§  343.  On  much  the  same  principle,  the  mere  read- 
ing of  decisions  from  reports  is  to  be  condemned  as 
being  merely  indefinite  in  application;  although,  to  be 
sure,  the  decisions  are  to  be  regarded  as  correct  in 
law.  Thus,  where  a  case  was  reversed  for  the  exclu- 
sion of  evidence,  and  on  the  next  trial  the  judge  read 
the  opinion  of  the  Supreme  Court  to  the  jury,  and 
submitted  the  case  thereon,  it  was  held  that  the  sub- 
mission was  error,  although  the  judge  had  subjoined 
to  the  reading  of  the  opinion  the  remark,  "Heading 
to  you  the  evidence  in  the  case,  which  does  not  in  any 
substantial  particular  vary  from  what  it  was  on  the 
former  trial,  it  is  our  plain  duty  to  submit  it  to  you 
under  the  instructions  of  the  Supreme  Court  as  I  have 
detailed  them  to  you ; "  and  then  proceeded  to  give 
some  detailed  instructions  as  to  the  facts,  —  the  effect 
of  the  whole  charge  being  to  lead  the  jury  to  believe 
that  the  case  was  precisely  that  upon  which  the  Su- 
preme Court  had  passed  before,  even  with  the  evi- 
dence formerly  excluded.'^'*  Although  it  is  not  un- 
proper  to  employ  the  language  of  the  higher  court  in 
its  specific  application  to  the  case  in  hand.^^  And  it 
is  even  held  error  to  refuse  to  do  it  when  so  re- 
quested.^*^ 

But  the  whole  practice  of  reading  books  to  the  jury 

23  Tipton  V.  Triplet!,  1  Met.         ^  Hood  v.  Hood,  25  Pa.  St. 

(Ky.)  571.  417. 

^^  Dimes  Savings  Inst.  v.  Al-         ^6  Pugh   v.  McCarty,  44  Ga. 

lento'vn  Bank,  61  Pa.  St.  395.  383. 


Chap.  I.]  NATURE    OF   EN^STKUOTIONS.  297 

is  quite  vigorously  condemned  in  Vermont;  and  the 
court  remarked,  in  a  criminal  case,  that  "  One  might 
almost  as  well,  for  any  purpose  of  actual  enlighten- 
ment, give  the  jury  a  general  treatise  upon  criminal 
law,  and  tell  them  the  whole  law  applicable  to  tht 
case  would  be  found  under  the  title  homicide,  or 
manslaughter  and  murder."  ~^  And,  in  Alabama, 
where  a  judge  said  to  the  jury  who  asked  further  in- 
structions, "  I  perceive  from  your  questions  that  your 
minds  have  been  misled  by  the  case  that  was  read," 
and  then  stated  to  them  that  they  should  receive  the 
law  from  the  court,  that  counsel  often  read  books  to 
the  jury  to  exjDlain  themselves  more  clearly  and  for- 
cibly, but  that  they  must  not  receive  them  as  law, 
only  so  far  as  they  were  sanctioned  by  the  court,  it 
was  held  no  error .^'^  And,  on  the  other  hand,  where, 
in  a  railroad  case,  the  judge  read  the  entire  syllabus 
of  another  railroad  case,  and  told  the  jury  that  that 
syllabus  was  the  law  of  the  case,  it  was  held  erro- 
neous.-^ And  it  is  also  held,  that,  on  the  trial  of  a 
criminal  prosecution,  the  court  may  properly  refuse 
to  permit  counsel  to  read  law-books  to  the  jury.^*^ 

§  344.  A  charge  consisting  of  several  paragraphs 
may  be  construed  together  as  one  where  the  para- 
graphs are  consecutively  numbered.  And  if  such  a 
charge,  taken-  as  a  whole,  is  applicable  to  the  testi- 
mony as  a  whole,  it  is  held  not  erroneous,  because 
certain  ]3aragraphs  omit  to  note  portions  of  the  evi- 
dence \^'hen  the   evidence  so  apparently  omitted  is 

2"  State  V.  McDonnell,  32  Vt.  29  Stucke  v.  R.  R.  9  Wis.  202. 

535.  30  Murphy  v.  State,  6  Ind.  490. 

-^  Chamberlain  &  Co.  v.  Mas-  , 

terson,  26  Ala.  3H. 


298  IN^STKUCTIONS   AND    CHARGES.  [Paiit  II. 

properly  brought  to  the  notice  of  tho  jury  in  other 
paragraphs  of  the  charge,  and  the  charge  as  a  whole 
is  a  proper  declaration  of  the  law  applicable  to  the 
whole  testimony.^^  And  so,  where  a  prayer  for  an 
instruction  contains  an  apparently  independent  propo- 
sition, and  another  more  definite  and  substantial  one 
predicated  on  the  facts  submitted  in  the  other  portion 
for  the  finding  of  the  jury,  they  should  be  considered 
together  as  one  proposition,  when  they  are  properly 
connected.'^"  And  if  there  be  a  series,  and  part  erro- 
neous, but  the  error  is  corrected  in  another  part,  the 
whole  will  be  sustained.^^  N^or  has  a  judge  the  right 
to  refuse  a  series  of  instructions  merely  because  they 
are  unnecessarily  numerous  and  lengthy.^* 

§  345.  An  objection  apparent  on  the  face  of  the 
pleadings  cannot  be  raised  for  the  first  time  by  an  in- 
struction, after  a  trial  on  the  merits.  It  is  the  duty 
of  parties  to  take  advantage  of  such  an  objection  by 
means  of  a  demurrer .^^ 

§  346.  Where  a  request  is  an  entire  proposition 
made  in  reference  to  the  plaintiff's  right  of  recovery, 
and  not  in  reference  to  damages,  and  is  properly  de- 
nied, it  is  not  error  for  the  court  to  omit  to  single  out 
a  particular  part  of  it  and  apply  it  upon  the  question 
of  damages,  if  in  the  charge  given  there  is  no  affirma- 
tive error  as  to  the  assessment  of  damages.'^*^ 

§  347.   It  is  not  held  improper  for  a  judge  to  cau- 

31  Hawkins  v.  Hudson,  45  ^4  jyfcCaleb  i;.  Smith,  22  Iowa, 
Ala.  482.  242. 

32  Parkhurst  v.  R.  R.  19  Md.  ^  Young  v.  Broadbent,  23 
473.  Iowa,  539. 

33  State  V.  Robbins,  3  Jones  36  ^Vhittaker  v.  Periy,  38  Vt. 
L!(N.  C.)250.  114. 


Chap.  I.]  NATURE   OF  INSTRUCTIONS.  299 

tion  a  jury  against  false  sympathy  in  a  crimin<al  case, 
in  even  strong  language;  as  where  the  charge  was 
that  they  must  "  render  a  fair  and  honest  verdict.  If 
they  had  a  reasonable  doubt  as  to  the  guilt  of  the 
prisoners,  it  was  their  duty,  under  the  obligations 
they  had  taken,  to  render  a  verdict  accordingly;  but 
if  they  were  satisfied  beyond  reasonable  doubt,  upon 
the  law  and  evidence,  that  the  prisoners  were  guilty, 
and  from  any  false  sympathy  rendered  a  verdict  of 
not  guilty,  that  the  law  said  they  were  perjured  men ; " 
the  instruction  was  sustained.^^ 

§  348.  And  an  instruction  urging  the  jury  to  agree 
is  held  proper ;  as  where  the  court  suggested  that  the 
case  at  bar  had  been  twice  tried,  and  that  it  was  im- 
portant that  they  should  agree  if  they  could  satisfy 
their  minds  as  to  the  right  of  the  cause  between  the 
parties  ;'^^  although,  in  a  criminal  case  especially,  great 
caution  is  requisite.  And  where  a  jury,  being  out  a 
long  time,  came  into  court  for  further  instructions, 
and  the  foreman  stated  that  there  was  little  probabil- 
ity of  their  ever  agreeing,  and  asked  that  they  be  dis- 
charged, and  the  court  refused,  saying  that  he  "  con- 
sidered it  his  duty  to  keep  the  jury  longer,  in  view 
of  the  fact  that  the  prisoner  was  charged  with  the 
commission  of  the  highest  crime  known  to  the  law, 
and  that  the  security  of  the  lives  of  the  people  re- 
quired, as  well  as  the  interests  of  the  prisoner,  that 
the  jury  should  not  be  discharged  until  every  eflbrt 
had  failed,  and  there  was  no  probability  whatever  that 
the  jury  could  agree,  and  that  before  the  next  term 

^'  State  V.  Fulkerson,  Phill,          ^  Niles  v.  Spraguc,  13  Iowa, 
L.  (N.  C.)  233.  198. 


300  INSTRUCTIONS   AND    CHAJIGES.  [Part  II. 

of  the  court  the  witnesses  might  be  in  their  graves, 
and  justice  cheated  of  its  victim,"  it  was  held  im- 
proper as  indicating  the  opinion  of  the  court  that  the 
prisoner  was  guilty .'''' 

§  349.  It  is  held  that  the  court  may  keep  up  com- 
munication with  the  jury  as  well  for  withdrawing 
erroneous  instructions,  as  for  giving  additional  when 
needful;  although,  if  erroneous  instructions  are  given 
in  writing,  and  taken  by  the  jury  to  their  room,  they 
are  not  to  be  withdrawn  through  the  bailiff,  after 
adjournment  for  tlie  day,  and  in  the  absence  of  the 
parties. ^^ 

§  350.  In  "Wisconsin,  it  is  held  that  answers  to 
casual  questions  by  jurors  do  not  come  under  the 
definition  of  a  charge,  within  the  meaning  of  the 
statute;  as  where  a  jury  asked  whether  the  plaintiff 
had  a  right  "  to  use  the  defendant's  divided  grain  to 
feed  the  stock  and  sheep,"  and  the  judge  replied  that 
by  law  he  would  not  have  the  right;  the  court  re- 
marking that  the  word  charge,  in  the  statute,  was  not 
intended  to  include  every  question  and  answer  pass- 
ing between  the  court  and  jury.*' 

89  Fisher  v.  People,  23  111.  294.         «  Millard  v.  Lyons,  25  Wis. 
40  Hall  V.  State,  8  Ind.  440.       610. 


Chap.  II.]  OF   GIVEsG  rNSTKUCTIONS.  301 


CHAPTER  n. 

Mode  and  Time  of  giving  Instructions. 

§  351.  In  general,  instructions  or  charges  are  given 
in  response  to  requests  or  prayers  of  parties,  or  rather 
counsel,  with  some  modifications  to  be  hereaftei*  noted. 
And  the  general  rule  is  pretty  clearly  stated  by  the 
Court  of  Errors  and  Appeals,  in  Mississippi,  in  ex- 
pounding the  statute,  thus:  "Any  judge  before  whom 
any  issue  of  fact  is  tried,  shall  charge  the  jury  only 
upon  contested  questions  of  law  applicable  to  the 
issue,  and  at  the  request  of  one  of  the  parties,  or  their 
counsel,  distinctly  specifying,  in  writing,  the  point  of 
law  in  regard  to  which  the  instruction  is  asked."  ^ 
And  a  request  must  be  made  in  such  a  form  that  the 
judge  may  properly  charge  in  its  terms  as  made,  with- 
out qualification,  or  otherwise  his  refusal  will  not  be 
held  error .^ 

§  352.  There  is  some  variation  of  practice  in  regard 
to  deviating  from  the  exact  language  of  the  request; 
but  the  general  rule  is,  that,  if  an  instruction  be  given 
substantially  as  requested,  it  is  sufficient;  and  some- 
times the  court  may  materially  modify  it,  or  even  re- 
verse it,  or  substitute  its  own  charge,  or  even  charge 
on  its  own  motion.  We  will  consider  here  a  few  par- 
ticulars, to  illustrate  this  matter. 

1  Williams  v.  State,  32  Miss.  ^  Bagley  v.  Smith,  10  N.  Y. 
397.  499. 


302  EN^STRUCTIONS   AND   CHARGES.  LI'art  IT. 

The  Alabama  code  (§  2355)  is  quite  rigid  in  tliis 
regard,  as  it  imperatively  requires  that  a  charge,  if 
correct  and  applicable,  must  be  given  in  the  language 
in  which  it  is  asked;  and  the  doctrine  of  error  with- 
out injury,  cannot  be  applied  to  a  refusal  of  such 
charge,  and  that,  too,  although  the  legal  proposition 
embraced  in  it  was  substantially  enunciated  in  another 
charge  given  by  the  court.^  But  this,  of  course,  is 
subject  to  the  conditions  that  the  request  states  a  cor- 
rect legal  proposition,  and  has  no  tendency  to  mislead; 
and  if  the  judge  is  apprehensive  that  it  places  any 
particular  phase  of  the  case  in  undue  prominence  be- 
fore the  jury,  it  is  held  that  he  may  and  ought  to  sup- 
plement it  by  an  additional  explanatory  charge,  to 
guard  against  such  tendency  to  distort  the  case.^ 

In  Xew  York,  it  is  held,  that,  where  propositions 
are  submitted  to  the  court,  with  a  request  that  they 
be  given  as  instructions  to  the  jury,  and  are  charged 
in  all  their  just  sense  and  meaning,  it  is  no  ground  for 
setting  aside  the  verdict  that  the  judge  did  not  adopt 
the  very  words  of  the  request,  it  being  enough  that 
the  instructions,  given  clearly  and  intelligibly,  embrace 
the  whole  rule  on  the  subject.^ 

In  Iowa,  on  the  very  contrary,  the  court  has  strong- 
ly expressed  a  disapproval  of  the  whole  practice  of 
allowing  counsel  to  instruct  the  jury  by  requests,  and 
declare  that  "  The  better  practice,  as  a  general  rule, 
is  for  the  judge  to  put  aside  the  instructions  asked  by 
the  respecti^^e  counsel,  and  cover  the  w^hole  ground 

3  Polly  V.  McCall,  ST  Ala.  21.         ^  Williams  v.  Birch,  6  Bosw. 

4  Bell's    Adm'r   v.  Troy,    35     300. 
Ala.  186. 


Chap.  II.]  OF   GIVING   INSTKTJCTIOXS.  303 

of  the  controversy  in  a  corrected  and  methodical 
charge  of  his  own,  stating  the  questions  of  fact  to  be 
decided,  and  the  law  applicable  thereto,  under  the 
issues  and  the  evidence."  ^  And,  also,  it  is  declared 
to  be  proper  w^here  the  court  does  give  instructions 
asked  to  append  a  note  thereto,  directing  that  they 
shall  be  considered  with  other  instructions  given  by 
the  court/ 

In  Maine,  it  is  held  not  to  be  a  matter  of  right  with 
counsel  to  have  the  charge  in  the  exact  language  of 
the  request,  but  only  that  the  request  be  substantially 
given.® 

And  so,  in  New  Hampshire,  no  objection  can  be 
made  for  variation,  if  the  exact  language  was  not 
called  for  by  the  facts,  and  the  charge  was  sufficiently 
favorable  to  the  objector."  And,  in  IS^orth  Carolina, 
substantial  compliance  is  all  that  is  requisite.^"  And 
in  Minnesota;  '^  and  the  court  can  modify  the  requests. 

But  it  is  the  other  way  in  Mississippi.'^ 

In  Illinois,  it  was  held,  in  1859,  that  requests  are 
not  strictly  necessary.  The  court  say,  "  Courts  are 
created  and  established  for  the  administration  of  jus- 
tice, and  all  legal  and  proper  means  should  be  em- 
ployed for  the  attainment  of  that  end.  And  how  it 
can  be  error  for  the  court  to  instruct  the  jury  as  to 
the  law  of  the  case,  whether  asked  to  do  so  or  not,  we 
are  at  a  loss  to  conjecture.  We  have  been  referred 
to  no  authority  that  so  holds,  and  we  cannot  imagine 

®  State  V.   Collins,  20   Iowa,  ^^  Marshall  v.  Flinn,  4  Jones 

91.  L.  199. 

"'  State  V.  Pitts,  11  Iowa,  343.  ^^  Dodge  v.  Rogers,  9  Minn. 

8  Treat  v.  Lord,  42  Me.  553.  228. 

»  Clark  U.Wood,  34  N.  11.447.  ^^  Cotton  y. State,  31  Mis8.604. 


304  ESrSTRUCTIOXS   AND    CHAEGES.  [Part  II. 

that  such  can  exist.  One  of  the  very  objects  of  hav- 
ing a  judge  is  to  instruct  the  jury  on  the  law  apj^U- 
cable  to  the  case.  Instead  of  its  being  error  for  the 
court  on  its  own  motion  to  instruct  where  it  seems  to 
be  required  by  the  justice  of  the  case,  it  is  rather  the 
duty  of  the  judge  to  give  such  instructions.  The  in- 
struction given  by  the  court  in  this  case,  without  being 
requested  by  either  party,  we  think,  embraced  the  law 
as  applicable  to  the  case,  and  it  is  not  denied  that  it 
does.  And  we  have  no  hesitation  in  saying,  that, 
so  far  from  its  being  error,  the  court  acted  in  strict 
conformity  with  the  duty  miposed  by  the  oath  of  the 
judge  and  the  requirements  of  the  law."  '^  But  the 
statutes  of  the  state  now  seem  at  least  to  bear  ver}-^ 
hard  against  the  doctrine  herein  enunciated. 

In  Indiana,  the  court  is  bound  to  instruct  the  jury, 
unless  the  parties  consent  to  dispense  with  instruc- 
tions.^* 

In  Maryland,  where  an  instruction  is  granted  by 
the  court,  after  the  rejection  of  prayers  offered  by 
counsel,  it  is  defective,  unless  it  declares  the  law  upon 
the  points  raised  by  the  counsel,  in  terms  explicit  and 
intelligible  to  the  jury.'^  And  the  general  rule  iz 
stated  by  the  court  thus :  "  It  may  be  proper  to  grant 
or  refuse  prayers  in  the  terms  in  which  they  are  ]ire- 
sented,  and  for  the  court  to  reject  them  all,  and  in- 
struct the  jury  in  their  own  words,  or  grant  the 
prayers,  with  such  explanations  or  qualifications  as 
may  be  necessary  to  a  proper  understanding  of  the 

13  Stumps  V.  Kelley,  22   111.  ^^  Fells   Point  Savings  Inbt. 

141.  V.  Adm'r,  18  Md.  321. 

"  Welch  V  Watts,  9  Ind.  115. 


Chap.  II.]  OF   G-IVrN^G   IKSTKUCTIONS.  305 

case ;  but  it  must  appear,  from  the  instruction  given, 
that  full  and  substantial  justice  has  been  clone  to  the 
parties,  by  declaring  the  law  accurately,  and  in  terms 
explicit  and  intelligible  to  the  jury,  upon  the  points 
raised  by  the  counsel."  ^^  And  where  the  court  can- 
not grant  the  entire  prayer  as  made,  although  a  por- 
tion of  it  might  have  been  given  in  separate  distinct 
forms,  the  whole  may  be  rejected/^ 

The  same  is  held  in  California,  to  the  effect  that, 
where  an  instruction,  if  given  entire,  would  be  erro- 
neous, the  court  is  not  bound  to  separate  the  con- 
cluding clause,  and  give  that  by  itself.^** 

In  South  Carolina,  where  there  is  no  request,  error 
cannot  be  assigned  as  to  the  omission  of  the  judge  to 
charge  the  jury  on  certain  propositions  of  law.^^ 

And  so,  in  Pennsylvania,  the  court  will  not  reverse 
a  cause  because  of  an  omission  at  the  trial  to  instruct 
the  jury  on  a  material  point  in  the  cause,  if  the  atten- 
tion of  the  court  below  were  not  called  to  it  by  the 
counsel.^"  And  it  is  held,  in  that  state,  that,  where 
the  points  presented  to  the  court  below  are  fully  an- 
swered in  a  general  charge  to  the  jury,  it  is  sufficient, 
without  a  separate  and  detached  response  to  each; 
and,  when  this  is  done,  those  which  are  not  answered 
are  to  be  considered  as  negatived  by  the  court.^^ 

In  Virginia,  where  a  party  asks  for  an  instruction, 
which  is  in  itself  proper  to  be  given,  it  must  be  given 

1^  Snively  v.  Fahnestock,  18  ^^  Madsden  v.  Ins.  Co.  1  S. 

Md.  396.  C.  24. 

1'  Birney  v.  Tel.  Co.  18  Md.  ^o  Newman    v.   Edwards,    34 

342.  Pa.  St.  35. 

18  Smith  V.  Richmond,  19  Cal.  ^i  Arbuckle  v.  Thompson,  37 

4n.  Pa.  St.  no. 

20 


306  INSTKTJCTIONS   AJSTD   CHAHGES.  [Part  II. 

as  asked,  although  in  part  it  is  based  upon  an  assump- 
tion not  sustained  by  the  evidence;  and  even  if  an 
instruction  asked  is  equivocal,  being  correct  in  one 
construction,  but  incorrect  in  another,  it  should  not  be 
refused,  if  by  so  refusing  the  jury  would  be  misled; 
but  should  be  given  with  an  explanation  giving  it  the 
proper  meaning."  And  it  is  error  to  substitute  an 
instruction  which,  though  stating  the  law  correctly, 
yet  is  long  and  complicated,  calculated  to  mislead  the 
jury,  and  does  not  cover  the  points  of  the  instruction 
asked  for.^^ 

In  Georgia,  where  an  instruction  is  asked  for  on 
the  condition  that  the  evidence  sustains  it,  the  court 
may  adopt  the  opposite  alternative,  and  give  a  direct- 
ly opposite  charge,  if  the  evidence  preponderates  on 
that  side.^^ 

In  Michigan,  however  con-ect  any  specific  request 
may  be,  it  may  be  refused  if  the  judge,  in  a  written 
charge  already  given,  fairly  leaves  to  the  jury  the 
question  substantially  raised  by  the  request.  And 
the  court  remarked,  in  a  certain  case,  that  the  "  jury 
will  always  better  understand  a  charge  given  as  one 
connected  whole  than  if  the  same  matter  were  broken 
up  into  separate  and  detached  portions,  which  are 
more  likely  to  confuse  than  to  enlighten."  ~^ 

In  Missouri,  it  is  held,  that,  when  counsel  present 
to  the  court  correct  views  of  the  law  in  a  clear  and 
distinct  form,  and  so  as  not  to  mislead  the  jury,  the 
better  practice  is  for  the  court  to  adopt  the  instruc- 

22  R.  R.  V.  Polly,  14  Gratt.  24  Thomas  v.  State,  27  Ga. 
448.  288. 

23  R.  R.  V.  Laffertys,  14  Gratt.  25  Fisher  v.  People,  20  Mich. 
478.  144. 


Chap.  II.]  OF    GIVING   INSTRUCTIONS.  307 

tions  thus  presented;  yet  the  judge  has  a  right  to 
present  his  own  views  in  his  own  language;  and  often, 
from  the  ohscurity  or  multiphcity  of  instructions  pre- 
sented hy  counsel,  it  is  his  duty  to  do  so.^'' 

§  353.  Wliere  a  plaintiff's  prayer,  leaving  to  the 
jury  the  inquiry  whether  certain  estimates  were  made 
in  good  faith  or  not,  is  granted  with  the  assent  of  the 
defendant,  the  latter  cannot  afterwards  object  to  the 
same  inquiry  being  made  a  part  of  his  own  prayers. 
For  what  is  admitted  to  be  the  law  of  the  case  cannot 
be  gainsaid  before  a  jury;  and  a  defendant,  after 
conceding  a  prayer  involving  a  certain  question  of 
fact,  cannot  deny  that  such  an  inquiry  is  before  the 
jury,  any  more  than  he  can  argue  against  the  law  of 
instructions  given  without  such  assent."^ 

§  354.  A  prayer  may  be  a  partial  one,  not  taking 
in  opposing  evidence,  and  yet  proper,  so  as  to  make 
it  obligatory  upon  the  court  to  grant  it;  since  a  party 
has  a  right  to  segregate  a  portion  of  the  testimony  in 
a  cause,  and  ask  the  opinion  of  the  court  upon  it,  un- 
less, in  doing  so,  his  prayer  tends  to  mislead  the  jury.^ 

§  355.  A  court  is  not  bound  to  give  a  doubtful  in- 
struction, nor  express  an  opinion,  still  less  to  charge, 
concerning  the  motives  or  belief  of  a  party  as  to 
fraudulent  representations,  when  the  evidence  is  not 
clear  enough  to  warrant  a  peremptory  ruling  as  to 
the  law  applicable  to  the  matter.^^ 

§  356.  It  is  imperative  that  all  instructions,  even 
those  asked  by  the  jury  after  they  have  retired  for 

26  Harman  v  Shotwell,  49  28  Williams  V.  Woods,  16  Md. 
Mo.  423.  257. 

2"  R.  R.  V.  Resley,  14  Md.  424.         29  Moore  v.  Meacham,  10  N. 

Y.  212. 


308  INSTRUCTIONS   AND    CHARGES.  [Paut  II. 

deliberation  on  their  verdict,  should  be  given  in  open 
court,  in  order  that  there  may  be  opportunity  to  know 
what  they  are,  and  to  except  to  them  if  desired,  or 
ask  any  other  necessary  explanations;  nor  does  it 
matter  that  the  additional  instructions  are  precisely 
the  same  in  principle  with  those  previously  given."" 
And  so,  where  the  judge,  being  requested  by  the  jury 
to  give  them  further  instructions,  went  to  the  court- 
room during  the  hours  of  recess,  and  the  jury  were 
conducted  into  his  presence,  and  there  instructed,  in 
the  absence  of  parties  and  counsel,  and  without  notice 
to  them,  it  was  held  decidedly  erroneous.^^  And  even 
where  the  charge  only  consists  of  a  repetition  of  a 
portion  of  the  previous  charge  given  before  they  re- 
tired to  make  up  a  verdict,  and  particularly  in  criminal 
cases;  for  a  prisoner  undoubtedly  has  a  right  to  be 
present  at  every  step  of  the  proceedings  in  his  trial.^^ 
But  it  is  a  privilege  which  may  be  waived,  at  least 
in  a  civil  action,  and,  by  parity  of  reason,  in  a  criminal 
action  likewise.  And,  in  a  cas«  on  certiorari,  the 
justice  gives  this  account:  "After  the  jury  had  been 
out  a  short  time,  they  sent  for  the  court  in  their  room 
to  explain.  I  called  for  the  parties,  and  it  appeared 
the  defendant  had  absconded,  although  under  a  war- 
rant, and  his  counsel  refused  to  go  in.  I,  however, 
went  in,  and  found  they  wished  the  opinion  of  the 
court  on  the  indorsement  of  the  note,  as  there  was  no 
date  to  it.  My  answer  was  that  I  should  consider  it 
as  due  when  indorsed,  as  it  was  thus  intimated  on  the 

»>  O'Connor    v.    Guthrie,    11         ^2  g^ate  v.  Blackwelder,  Phill. 
Iowa,  80.  (N.  C.)  38. 

^^  Campbell  v.  Becket,  8  Ohio 
St.  214. 


Chap.  II.]  OF    GIVING   INSTRUCTIONS.  309 

plaintiff's  state  of  demand,  and  not  denied  by  the  de- 
fendant in  his  pleading."  And  on  this  statement  by 
the  jndge  below,  the  Supreme  Court  remarked,  "  If  a 
jury,  after  withdrawing  to  consider  the  cause,  get 
embarrassed  on  a  question  of  law,  they  may,  and  in 
prudence  ought  to,  ask  for  the  opinion  of  the  justice 
thereon,  and  it  is  his  duty  to  declare  the  law  to  them. 
It  should  be  done  in  the  presence  of  both  parties,  that 
they  may  except  to  the  opinion  for  error,  if  they  think 
it  erroneous;  and  therefore  they  ought  to  be  called, 
and  even  sought  for,  by  the  constable  or  other  person 
deputed  by  the  court.  But  if,  sought  for  honestly  at 
the  place  of  trial,  where  they  ought  to  be,  they  cannot 
be  found,  or,  being  found,  they,  or  either  of  them, 
refuse  to  attend,  such  absence  or  refusal  does  not  re- 
lease the  justice  from  his  duty  to  declare  the  law  to 
the  jury.  .  .  .  Whether  the  justice  delivers  his  charge 
in  the  room  where  the  trial  was  heard,  or  in  the  room 
where  the  jury  is  convened,  is  wholly  immaterial  in 
law  and  in  reason,  provided  there  is  notice,  or  a  rea- 
sonable effort  to  give  notice,  to  parties  to  be  present, 
and  the  room  is  made  public  to  everybody  during  the 
charge.  But  if  a  justice  should  go  into  the  jury-room 
secretly  and  unknown  to  parties,  and  there  hold  pri- 
vate conference  with  the  jury,  it  would  excite  allow- 
able jealousies  in  both  parties,  and  be  such  an  outrage 
upon  the  essential  forms  of  trial  as  to  vitiate  all  the 
proceedings."  ^^ 

§  357.  As  to  the  time  when  requests  for  instruc- 
tions must  be  presented  in  the  first  instance,  courts 
may  adopt  any  reasonable  rule  pertaining  thereto;  as, 

33  Cook  V.  Green,  1  Halst.  (N.  J.)  109. 


310  IN^STKUCTIONS   AND    CHAEGES.  I  Part  II. 

for  example,  that  the  presentation  shall  be  before  the 
connncncement  of  the  argument  in  the  cause."  But 
a  rule  that  "A  part}^  desiring  written  instructions  to 
the  jury  must  notify  the  court  of  such  desire  before 
the  trial  commences,  or  his  right  to  the  same  will  be 
considei-ed  as  waived,"  was  held  void,  in  Indiana,  as 
rej^ugnant  to  the  law.^' 

AVhere  a  reasonable  rule  has  been  adopted,  it  is  not 
error  to  enforce  it."^*^  Yet  it  should  not  be  held  to 
so  rigidly  as  to  defeat  instead  of  promote  the  ends 
of  justice,  and  especially  where  life  or  liberty  is  at 
stake.  And  so,  in  California,  it  has  been  held  that, 
where,  in  a  criminal  prosecution,  injustice  would  be 
done  to  the  prisoner  by  refusing  to  consider  requests 
oflered  after  argument,  under  a  rule  requii'ing  the 
presentation  thereof  before  argument,  —  as  where  in- 
structions are  made  necessary  by  any  argument  or 
propositions  of  the  district  attorney, — the  mstructions 
asked  should  be  given  for  the  prisoner,  or  else  the 
court  should  so  explain  its  charge  as  to  put  the  law 
correctly  before  the  jury.^^  And,  in  Missouri,  it  has 
been  held,  that  where  a  departure  from  rule  will  do 
no  harm,  it  is  not  cause  for  reversal.^^  In  Iowa,  it 
was  held  error  for  the  court  to  refuse  to  instruct 
where  the  request  was  handed  in  during  the  opening 
and  only  argument  in  the  cause,  on  the  ground  that 
it  was  submitted  so  late  in  the  cause  that  it  could  not 


34  Prindeville    v.    People,   42  36  Waldie  v.  Dall,  29  Cal.  556; 

111.  221  ;   Cluskey  v.   St.  Louis,  Firman  v.  Blood,  2  Kan.  496. 

50  Mo.  89  ;   Firman  v.  Blood,  2  27  People  v.  Sears,  18  Cal.  635. 

Kan.  496.  38  Cluskey    v.    St.    Louis,    50 

3-'  Laselle  v. Wells,  17  Ind.  34.  Mo.  89. 


Chap.  II.]  OF    GIYTNG   rN^STRUCTIO:N^S.  811 

be  examined  without  keeping  the  jury  in  waiting."^^ 
And,  in  Michigan,  where,  in  a  case  of  murder,  the 
court  charged  the  jury,  and  afterwards  the  prisoner's 
counsel  requested  a  charge,  that,  as  to  good  character, 
it  is  for  the  jury  to  consider  whether  such  reputation 
tends  to  rebut  the  presumption  of  maHce,  and  the 
court  refused  to  grant  it  on  the  ground  that  it  might 
mislead  the  jury,  without  further  explanation,  which 
the  court  did  not  then  feel  bound  to  give,  in  view  of 
a  rule  adopted  by  the  court  requiring  that  requests  to 
charge  must  be  handed  in  by  counsel  before  the  argu- 
ment was  commenced,  it  was  held  that  the  rule  was 
reasonable,  and  ought,  ordinarily,  to  be  complied  with, 
but  that  no  unbending  rule  to  this  effect  could  be  laid 
down,  especially  as  the  necessity  for  requests  to 
charge  may  often  arise  from  the  very  charge  given 
by  the  judge. ^" 

§  358.  Where  a  legal,  pertinent  charge  is  requested, 
in  writing,  of  the  court,  and  read  by  the  counsel  in 
the  presence  of  the  jury,  the  court  should  give  it, 
though  in  the  language  of  the  request;  and  it  is 
improper  to  hold  up  the  paper  containing  the  request, 
after  the  same  has  been  read  by  counsel,  and  say, 
"Gentlemen,  I  give  you  all  this  in  charge,  as  re- 
quested." *^ 

^  McCaleb  v.  Smith,  22  Iowa,  *^  Leaptrot  v.  Robertson,  44 
243.  Ga.  46. 

^  People  V.  Garbutt,  11  Mich. 
10. 


312  DTSTKUOTIONS  AOT)   CHARGES.  FPabt  II. 


CHAPTER  m. 
Oral  and  Written  Bequests  and  Instructions. 

§  359.  There  is  a  difference  of  practice  in  different 
courts  as  to  oral  and  written  charges.  I  suppose 
that  wherever  written  instructions  are  not  specifically 
required  by  statute,  it  is  sufiicient  to  state  the  law  to 
the  jury  orally.  In  some  states,  oral  charges  may  be 
given  where  writing  is  not  requested,  and  in  others 
wi'iting  is  imperative,  and  cannot  be  dispensed  with 
at  all,  or  only  by  explicit  consent  of  parties  or  their 
counsel,  and  in  others  still  writing  seems  to  have  been 
left  discretionary  with  the  court. 

In  Illinois,  it  is  imperative  that  instructions  be  in 
writing,  and  this  writing  is  not  subject  to  any  verbal 
explanations.  But  the  court  seem  to  express  strong 
dissatisfaction  with  the  statute,  although  not  clearly 
intimating  the  grounds  on  which  that  dissatisfaction 
rests.  "  This  statute,"  say  they,  "  plainly  inhibits  the 
Circuit  Courts  from  changing  or  in  any  measure  af- 
fecting orally  the  law  as  stated  in  written  instructions 
given;  and  in  a  case  of  so  clear  intention  of  the  law- 
making power,  there  is  no  room  by  instruction  to 
avoid  consequences,  however  inconvenient  in  practice 
or  detrimental  to  the  administration  of  justice.  The 
law  being  so  written,  the  courts  must  submit  to  and 
abide  the  mandate,  and  trust  to  the  wisdom  of  the 


Chap.  III.]      ORAL   AND   WRITTEN   REQUESTS,   ETC.       313 

legislature  for  such  change  as  experience  may  sug- 
gest. It  is  true  it  does  not  appear  what  the  oral 
explanations  and  qualifications  were,  yet  the  words 
import  a  modification,  limitation,  restriction,  or  con- 
struction of  the  written  instructions,  and  therefore  a 
change  in  some  degree  of  the  law,  as  staled  in  writ- 
ing.    This  is  plainly  forbidden."  ^ 

And  the  Colorado  Territory  Supreme  Court  quote 
the  decision,  apparently  in  the  same  spirit,  in  regard 
to  the  statute  there  in  force,  saying,  "  This  statute  is 
mandatory,  and  we  must  submit  to  it  so  long  as  the 
legislature  suffers  it  to  remain  a  law."^  But  it  seems 
that  there  the  parties  may  consent  to  oral  additions 
expressly,  and  thus  legalize  them,^  but  probably  only 
in  a  civil  case. 

In  California,  the  court  has  no  right,  in  a  criminal 
case,  to  charge  or  instruct  orally  without  the  consent 
of  the  prisoner.  And  the  fact  that  the  judge  told  the 
prisoner's  counsel  that  he  would  put  his  charge  in 
writing,  if  desired,  does  not  help  the  case;  nor  will  it 
do  to  say  that  the  instruction,  as  given,  can  do  no 
harm,  for  the  very  point  of  inquiry  is,  what  the  court 
did  actually  charge.  The  charge  must  be  put  in  such 
shape  as  that  the  prisoner  can  get  the  benefit  of  it, 
since  he  is  entitled  to  stand  on  his  strict  legal  rights, 
and  to  avail  himself  of  any  errors  to  defeat  a  convic- 
tion. .  Kor  is  it  necessary  that  the  prisoner  should 
except  to  the  charge  at  the  time  it  is  given.*  And 
any  consent  must  be  express,  and  cannot  be  presumed 

1  Ray  V.  Wooters,  19  111.  82.          ^  Dorsett  v.  Crew,  Ibid.  22. 

2  Gill  V.  People,  1  Col.  T.  61.         ^  People  v.  Ah  Fong,  12  Cal. 

345. 


314  INSTRUCTIONS    AND    CHAEGES.  [Part  II. 

from  the  presence  of  the  prisoner  and  his  faihire  to 
make  objection.^ 

In  Texas,  a  verbal  instruction  cannot  be  given 
without  the  consent  of  the  party,  or  his  attorney.'' 
But  it  seems  that  a  party  can  consent  to  his  own  in- 
structions being  given  orally,  and  that  the  opposite 
party  cannot  object  to  it.' 

The  Ohio  statute  requires  that  an  oral  charge  shall, 
upon  application  by  either  party,  be  reduced  to  writ- 
ing before  the  jury  retires  to  consider  the  verdict.^ 

In  Florida,  requests  are  to  be  presented  in  writing, 
and  then  the  judge  is  to  "  declare  in  writing  his  ruling 
thereon  as  presented,  and  pronounce  the  same  to  the 
jury  as  given  or  refused,"  and  ^vi'ite  out  also  and  de- 
liver to  the  jury  his  own  ruling  of  the  law  upon  the 
points  raised.  And  it  is  held  that  the  court  should, 
in  all  cases,  give  an  accused  person  a  reasonable  op- 
portunity to  reduce  to  writing  such  instructions  as  he 
might  desire  upon  matters  transpiring  during  the 
trial,  and  that  a  denial  of  this  is  a  denial  of  his  right 
to  be  heard  in  his  defence.^  The  judge  may  omit, 
however,  to  charge  the  jury  when  no  instiiictions  are 
specially  requested  in  writing;  but  when  he  does 
charge,  under  such  circumstances,  he  must  not  only 
confine  himself  to  the  law  applicable  to  the  case,  but 
also  reduce  his  charge  to  writing  before  it  is  de- 
livered.^" 

In  Indiana,  it  is  imperative  to  reduce  instructions 

5  People  V.  Chares,  26  Cal.  ^  Hardcy  v.  Turney,  9  Ohio 
IS;    People  v.   Beeler,   6   Cal.     St.  401. 

246.  9  Dixon    v.    State,     13    Fla. 

6  Clark  V.  State,  31  Tex.  575.  650. 

7  Boone     v.     Thompson,     17  ^^  Long  v.  State,  11  Fla.  295 
Texas,  607. 


Chap.  III.]     ORAX.    AlH)   WEITTEX   REQUESTS,   ETC.        315 

to  writing,  where  either  party  requests,  and  to  give  it 
as  written,  without  verbal  modifications  or  explana- 
tions." And  so,  where  the  court  proceeded,  after 
request,  to  charge  the  jury  verbally  from  a  writing 
lying  on  the  judge's  desk,  and,  on  objection  made, 
remarked  that  a  part  of  the  charge  was  reduced  to 
writing,  and  that  what  had  been  given  should  also  be 
reduced  to  writing,  and  accordingly  the  verbal  charge, 
verbally  given,  was  substantially,  but  not  literally, 
reduced  to  writing,  and  read  over  again  to  the  jury, 
it  was  held  error.'-  And  accordingly  the  certificate 
of  a  judge  as  to  what  were  the  words  used  in  a  ver- 
bal charge  cannot  be  received  over  the  objection  of  a 
party. '^ 

But  it  was  held  no  violation,  where  there  Avas  a 
request  for  a  written  charge,  for  the  judge  to  repeat 
orally  a  part  of  one  of  the  instructions,  and  then,  in 
reading  another,  to  remark  orally  that  he  had  not 
intended  to  read  so  far,  and  re-read  it  as  he  had 
intended  to  give  it.'* 

However,  oral  instructions  are  evidently  the  rule  in 
that  state,  and  written  the  exception,  occurring  only 
on  special  requests,  and  being  therefore  regarded  less 
a  matter  of  right  than  of  favor  or  privilege.  And 
accordingly,  even  where  a  request  has  been  made,  and 
yet  the  court  gave  a  part  of  the  charge  orally,  it  has 
been  held  that  the  party  waives  the  error  by  not 
excepting  thereto ;  '^   although,  if  such  a  request  is 

"  R.E.  r.  Daniels,  21  Ind.  260.  "Pate   v.   Wright,    30    Ind. 

^2  Turnpike    Co.   v.   Conway,  4t9. 

1  Ind.  187.  15  Heuston  v.  R.  R.  16   Ind. 

i3Widnert;.State,28Ind.395.  281. 


316  INSTRUCTIONS   AND   CHARGES.  [Part  II. 

properly  made,  and  the  court  accompanies  its  instruc- 
tions with  any  verbal  exjDlanations,  comments,  or 
remarks,  though  not  inconsistent  with  the  law,  as  set 
forth  in  the  written  instructions,  and  in  no  way 
rehearsing  the  evidence,  it  will  constitute  a  good 
ground  for  grantmg  a  new  trial,  at  the  motion  of  the 
party  making  the  request/®  It  has  been  uniformly 
decided  in  that  state,  by  a  series  of  decisions  on  the 
point,  that  a  request  for  a  written  charge  comes  too 
late,  when  presented  as  the  court  is  proceeding  to 
instruct  orally  upon  the  general  points  of  the  cause. ^' 

In  low^a,  if  either  party  desires  the  charge  to  be  in 
writing,  it  must  be  so ;  '^  but  it  seems  it  may  be  first 
delivered  orally,  and  then  reduced  to  wi'iting,  unless 
there  is  objection. ^^  And  in  a  case  w'here  the  court 
orally  explained  the  instructions  given  to  the  jury  in 
writing,  and  appellants,  supposing  that  the  explana- 
tions were  also  written,  took  no  exceptions  until  after 
the  verdict  was  returned,  when,  becoming  apprised 
of  the  fact  that  the  explanations  were  not  in  writing, 
they  moved  the  court  for  a  new  trial  on  this  ground, 
and  the  motion  was  sustained,  the  Supreme  Court, 
regarding  this  as  a  matter  of  discretion  in  the  court 
below,  would  not  interfere.^^ 

In  Kentucky,  it  is  held  that  a  casual  remark, 
though  not  definitely  given  as  an  instruction,  may  be 
a  virtual  instruction;  and  if  oral,  therefore,  it  is  ille- 

16  Meredith  v.   Crawford,   34  ^^  State   v.  Sipult,  11    Iowa, 

Ind.  400.  576. 

1'^  Boggs  V.  Clifton,   IT   Ind.  ^  Head   v.    Langworthy,    15 

218.  Iowa,  235. 

1^  Stratton  v.  Paul,  10  Iowa, 
140. 


Chap.  III.]     ORAL    AXD    WTIITTEN   REQUESTS,   ETC.        317 

gal.  Thus,  in  a  criminal  case,  a  constable  who  made 
the  arrest  testified  that  the  prisoner  had  freely  con- 
fessed his  gnilt,  and  thereupon  the  prisoner's  counsel, 
with  the  avowed  purpose  of  showing  the  witness's 
frailty  of  memory  and  self-contradiction,  offered  his 
o^vn  Avritten  statement  of  his  testimony  before  the 
examining  court,  subscribed  by  himself,  which  was  ad- 
mitted, against  the  objection  of  the  prosecuting  attor- 
ney, and  the  court  thereon  said  that  "  the  defendant's 
attorney  has  let  down  the  fence,  and  now  all  is  before 
the  jury."  The  Supreme  Court  severely  animadverted 
upon  this  remark,  declaring  that  "  this  voluntary  dec- 
laration was  ultrajudicial  and  misleading.  It  erro- 
neously implied  not  only  that  the  written  statement 
was  evidence  of  all  the  facts  contained  in  it,  but  also 
that  it  was  the  more  impressive,  as  proof  offered  by 
the  accused  himself.  ISTow,  while  that  ^vritten  state- 
ment was  certainly  competent  for  the  purpose  for 
which  it  was  read,  it  was  as  certainly  incompetent 
evidence  of  the  truth  of  the  facts  it  recited,  and 
therefore  this  unnecessary  and  significantly  illustra- 
tive interference  by  the  circuit  judge  was  an  error  in 
law,  and  was  probably  the  more  misleading  as  indi- 
cating that  it  was  stamped  with  the  appellant's  own 
recognition  of  the  truth  of  the  facts  so  stated.  We 
cannot  speculate  on  the  actual  effect  of  this  blunder. 
It  is  sufficient  for  this  court  to  know  that  it  was 
wrong,  and  may  have  operated  to  the  prejudice  of 
the  appellant.  Moreover,  the  declaration,  which  was 
a  virtual  instruction,  was  merely  oral,  and  was  there- 
fore illegal."-^ 

2^  Coppage  V.  Commonwealth,  3  Bush.  533. 


318  IN-STKUCTIONS   AXD   CHARGES.  [Paht  II 

In  Alabama,  requests  must  be  in  writing,  or  it  is 
the  duty  of  the  court  to  refuse  them.  But  if  a 
ehai'ge  wliich  asserts  a  correct  legal  proposition  is 
asked  and  refused,  the  court  would  formerly  presume 
that  it  was  presented  in  writing,  unless  the  record 
showed  affirmatively  that  it  was  refused  because  ver- 
bal." And  a  request  must  be  given  or  refused  in  the 
terms  thereof,  the  court  having  no  right  to  modify  or 
add  any  qualifications  whatever.  This  is  rigid  enough, 
and  the  Supreme  Court  say  of  it,  "  We  do  not  approve 
of  the  law;  jet  it  is  so  written,  and  the  accused  had 
a  right  to  insist  upon  the  laAV  as  it  is."  ^^  Nor  does  it 
matter  whether  the  qualification  is  written  or  oral,  or 
even  by  allusion  only  to  other  charges  already  given.^* 

The  rule  of  presumption  as  to  requests  being  in 
writing  has  been  changed  by  later  decisions,  and  it  is 
now  requisite  that  the  record  should  show  affirma- 
tively that  the  request  was  in  writing.^"^  And  it  is 
held  that  where  the  request  is  not  in  wi'iting,  it  may 
be  refused,  and  then  afterwards  given  with  a  qualifi- 
cation by  reference  to  another  charge  already  given 
and  not  objected  to.^^ 

In  Wisconsin,  the  charge  must  be  in  writing,  if 
requested.-^  In  Maryland,  it  is  in  the  first  instance 
discretionary  with  the  court  to  give  instructions  orally 
or  in  writing;  but  where  an  oral  charge  is  first  given, 
either  party  may  have  it  reduced  to  writing  for  the 
purpose  of  excepting  to  it.^ 

22  Myatts  V.  Moore,  41  Ala.  ^6  ^liiner  v.  Wilson,  45  Ala. 
222.  478. 

23  Edgar  v.  State,  43  Ala.  53.  27  IJasbrouck    v.  Milwaukee, 

24  Lyon  V.  Kent,  45  Ala.  656.  21  Wis.  238. 

25  Broadbent  v.  Scientific  &  28  Smith  v.  Crichton,  33  Md. 
Art  Association,  i5  Ala.  170.  103. 


Chap.  Ill]     ORAL   AXD    ^YKITTEN   REQUESTS,    ETC.        310 

In  Georgia,  i,  specific  charge  must  be  asked  for  in 
wi'iting.'"* 

In  Maine,  it  has  been  held  proper  to  submit  to  the 
jury  written  questions,  with  such  instructions  as 
would  give  the  jury  to  understand  that  upon  their 
specific  answers  tliereto  the  rights  of  the  parties  de- 
pended, and  to  reserve  at  the  same  time  instruc- 
tions as  to  the  legal  effect  of  the  answers,  until  the 
questions  of  fact  embraced  in  the  questions  should  be 
determined.  The  court  above,  in  approving  the  novel 
proceeding,  say,  "  Such  a  course,  if  the  questions  did 
in  fact  embrace  the  substance  of  the  issue  presented, 
would  seem  well  calculated  to  secure  a  fair  determi- 
nation of  the  exact  matters  of  fact  in  controversy, 
unembarrassed  by  irrelevant  issues,  and  unbiassed  by 
prejudice  or  sympathy  for  or  against  either  party; 
and  in  a  case  where  the  result  must  depend  upon  the 
answ^ers  to  one  or  two  direct  questions,  we  think 
neither  party  can  object  to  the  adoption  of  this  course 
by  the  presiding  judge,  in  his  discretion,  in  lieu  of  an 
attempt  to  disentangle  the  case  from  its  embarrass- 
ments by  specific  instructions  as  to  all  the  matters 
involved  in  the  outset  —  an  attempt  which,  in  com- 
plicated cases,  it  is  to  be  feared,  is  not  infrequently 
rendered  abortive  by  the  misapprehension  or  forget- 
fulness  of  the  jury.  The  method  here  pursued  seems 
to  have  the  merit  of  simplicity  and  directness.^*^ 

29  Stre  it  V.  Lynch,  38  Ga.  ^o  Hovey  v.  Hobson,  55  Me. 
638.  277. 


320  INSTRUCTIONS  AND   CHARGES.  [Part  II. 


CHAPTEE    W. 

MODEFICATIONS   AND   ReFUSAI.S. 

§  360.  It  is  manifest  that  there  must  necessarily  be 
lodged  in  the  court  a  discretion  to  be  exercised  care- 
fully in  submitting  a  cause  to  the  decision  of  a  jury, 
which  discretion  may  consist  in  refusing  instructions 
judged  improper,  absolutely,  or  else  partially  refusing, 
and  giving  the  instructions  in  a  modified  form,  and 
not  as  requested.  A  refusal  of  an  explicit  instruction 
asked  for  is  by  no  means  to  be  regarded  as  equivalent 
to  an  assertion  of  the  opposite  principle  from  that 
therein  stated,  and  in  many  cases  such  an  interpi-cta- 
tion  would  involve  gross  absurdities.  Refusals  may 
rest  on  various  grounds,  and  may  be  quite  proper,  at 
times,  in  relation  to  a  charge  embodying  a  correct 
legal  proposition,^  as  we  shall  have  occasion  to  show 
hereafter. 

§  361.  But  a  refusal  must  not  be  arbitrary  in  any 
case;  and  so,  to  refuse  an  instruction  asked  for  soon 
after  the  court  had  refused  one  deemed  deficient  in 
form,  but  embodying  the  same  legal  principle,  on  the 
ground  that  it  was  tendered  after  the  time  prescribed 
by  the  rule  of  court  for  the  presentation  of  requests, 
is  not  a  proper  exercise  of  the  discretion  of  the  court, 
where  the  giving  could  not  injure  the  opposite  party, 
and  refusing  to  give  it  deprives  the  party  of  the  a[»- 

1  Miles  V.  Davis,  19  Mo.  413. 


Chap.  IV.]        MODLFICATIOIN^S   AND   EEFUSAI^S.  321 

plication  of  a  legal  principle,  to  which  he  is  entitled 
by  the  facts  of  the  case.^ 

§  362.  Obscurity  in  the  language  is  always  a  proper 
ground  for  refusal,  because  it  introduces  confusion 
into  the  case.  Thus,  in  a  criminal  case,  this  instruc- 
tion was  given:  "If,  in  reviewing  all  the  testimony 
introduced  on  the  part  of  the  state,  you  are  satisfied 
of  the  guilt  or  innocence  of  the  defendants,  under  the 
rules  given  you  by  the  court,  you  will  then  consider 
the  defences  set  up  by  the  defendants ;  and  in  consid- 
ering that  of  alihi,  you  will  bear  in  mind  that  it  de- 
volves upon  the  party  urging  it  to  establish  the  same 
to  your  satisfaction,  by  evidence.  It  is  not  suflScient 
to  warrant  an  acquittal,  that  he  merely  raises  a  rea- 
sonable doubt  as  to  whether  the  alihi  is  established, 
but,  as  before  stated,  you  must  be  satisfied  of  its 
truth  by  testimony.  If  you  believe,  from  the  testi' 
mony,  that  the  defendant,  at  the  time  alleged,  was  in 
the  city  of  Virginia,  you  must  acquit  him." 

I^ow,  there  seem  to  be  glimmerings  of  the  correct 
law  of  the  case  throughout  this  instruction,  but,  on  ap- 
peal, the  court  above  dealt  with  it  in  this  very  severe 
style:  "We  have  italicized  part  of  the  instruction, 
to  call  attention  to  it.  If  it  means  anything  which 
is  not  absolutely  nonsense,  it  means  this:  *You  will 
first  consider  the  evidence  of  the  state,  and  if  that, 
standing  alone,  produces  on  your  minds  a  conviction, 
beyond  all  reasonable  doubt,  of  the  guilt  of  the  pris- 
oner, you  will  then  consider  the  evidence  given  by 
defendants;  and  in  considering  that  which  tends  to 

2  Hill  V.  Wright,  23  Ark.  531. 

21 


322  INSTRUCTION'S    AND    CHAEGES.  [Part  II. 

prove  an  alibi,  you  must  bear  in  mind  that  it  is  not 
sufficient  for  the  defendant  to  have  produced  on  your 
minds  a  reasonable  doubt  as  to  whether  they  were 
present  at  the  place  of  robbery,  or  were  at  a  totally 
different  place  when  the  felony  was  committed.  Rea- 
sonable doubt  on  this  subject  is  not  sufficient;  there 
must  be  a  preponderance  of  evidence  tending  to  es- 
tablish the  alibi.  In  other  words,  the  evidence  which 
the  prisoner  introduces,  tending  to  show  he  was  in 
"Virginia,  or  Carson,  as  the  case  may  be,  at  the  time 
the  offence  was  committed,  must  be  stronger,  and  less 
susceptible  of  doubt,  than  that  introduced  by  the 
state  to  show  they  were  not  at  those  cities  when  the 
offence  was  committed,  but  at  a  point  between  the 
two,  where  the  stage  was  robbed.'  If  it  does  not 
mean  this,  then  it  means  that  the  jury  may  believe, 
from  the  testimony  of  the  state,  that  the  prisoners 
were,  beyond  a  doubt,  at  the  place  of  robbery  at  a 
certain  hour,  and  may  also  believe,  from  the  testimony 
of  the  defendants,  that  probably  at  the  very  same 
moment  of  time  they  were  at  a  totally  different  place. 
In  other  words,  in  order  to  convict  Waterman,  you 
may  believe  that  he  could  be  corporally  present  in 
two  different  places  at  the  same  time.  This,  it  ap- 
pears to  us,  is  utter  nonsense."  ^ 

But  with  all  due  deference,  I  may  be  allowed  to 
say  that,  to  an  indifferent  spectator,  the  court  above 
appears  almost  as  much  entangled  in  its  criticism  as 
the  court  below  in  its  instruction,  the  whole  being 
decidedly  foggy  all  around.     But  it  illustrates  aptly 

8  State  V.  Waterman  et  al.  1  Nev.  562. 


Chap.  IV.]       MODIFICATIONS    AND    REFUSAI^S.  323 

the  strict  necessity  of  clear  and  precise  language,  in 
the  instructions  of  a  court  to  a  jury. 

§  363.  A  singular  case  arose  in  Indiana,  wherein 
counsel  assigned  for  error  the  refusal  of  the  court  to 
instruct  the  jury,  and  the  court  above  held  that  there 
had  been  no  such  refusal.  The  case  was  argued  on 
the  trial,  and  then  the  court  remarked  to  the  jury, 
"Gentlemen,  I  have  no  instructions  to  give  you. 
Defendant's  counsel  have  requested  me  to  instruct 
you  in  writing,  which  I  am  not  prepared  to  do,  having 
had  no  time  to  write  instructions.  If  counsel  require 
me  to  put  my  instructions  in  writing,  without  giving 
me  time  to  prepare  them,  they  must  do  without  them. 
You  will  therefore  retire,  in  charge  of  your  bailiff, 
and  do  what  is  right  between  the  parties."  After 
being  absent  about  five  hours,  the  jury  returned,  and 
reported  that  there  was  no  prospect  of  an  agreement; 
whereupon  the  court  said,  "  Gentlemen,  you  ought  to 
come  to  some  conclusion.  This  cause  has  occupied  a 
good  deal  of  your  time,  and  ought  not  to  give  you 
much  trouble.  If  you  should  not  agi-ee,  it  would  be 
a  large  expense  to  the  county,  as  well  as  to  the  par- 
ties, to  try  it  over  again.  If  some  of  you  would  give, 
and  others  take,  a  little,  you  might  come  to  some 
agreement.  I  shall  have  supper  prepared  for  you  by 
eight  o'clock."  In  about  two  hours  after  they  re- 
turned a  verdict  for  defendant.  On  appeal,  it  was 
held  that  it  could  not  be  said  that  the  court  did  not 
instruct  the  jury,  and  that  perhaps  any  different 
instructions  than  those  given  might  have  been  un- 
necessary.^ 

*  Kraak  v.  Wolf,  39  Ind.  89. 


324  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

§  364.  It  is  held  by  the  Supreme  Court  of  the  Uni- 
ted States  not  to  be  error  for  a  court  to  refuse  to  give 
an  extended  series  of  instructions,  although  some  of 
them  may  be  correct  in  the  propositions  of  law  they 
present,  if  the  law  has  been  given  with  sufficient  ful- 
ness in  a  general  charge  to  guide  the  jury  correctly, 
and  that  a  judgment  is  not  to  be  set  aside  because  the 
charge  of  the  court  may  be  vulnerable  to  verbal  crit- 
icism in  particulars  considered  apart  from  their  con- 
nections, which  could  not,  when  taken  with  the  re- 
mainder of  the  charge,  mislead  a  jury  of  ordinary 
intelligence.^ 

§  365.  Where  an  instruction  asked  for  does  not 
correctly  expound  the  law,  the  court  may  refuse  to 
give  it,  and,  as  a  general  rule,  camiot  be  required  to 
adopt  it,  or  give  another  in  its  stead."  And  even 
where  it  is  correct,  it  may  be  refused,  unless  it  dis- 
tinctly appears  both  appropriate  and  necessary  to  the 
decision  of  the  cause."  Or  where  a  legal  charge  per- 
tinent to  the  issue  is  improperly  refused,  yet  if  it  ap- 
pears from  all  the  evidence  that  the  verdict  is  right, 
and  would  probably  have  been  found  the  same  if  the 
rejected  charge  had  been  given,  the  refusal  is  no 
ground  for  a  new  trial  .^ 

§  366.  Without  a  direct  refusal,  an  omission  to 
give  a  correct  and  pertinent  instruction  is  error,  if 
thereby  the  jury  are  left  without  a  proper  rule  for 
their  guidance,^  although  the  general  rule  is,  that  an 

5  R.  R.  V.  Whitton,  13  Wall.  '  Wells  v.  Prince,  15  Gray, 
290.  562. 

6  Rosenbaums  v.  Weeden,  18  ^  j^   r   ^    ggott,  37  Ga.  94. 
Gratt.  785.  ^  Whitney  v.  Inhabitants,  12 

Allen,  113. 


Chap.  IV.]        MODIFICATIONS    AND   REFUSALS.  325 

omission  to  charge  on  a  particular  aspect  of  a  case  is 
not  error,  where  no  specific  instruction  thereon  has 
been  requested/"  And  while  a  party  cannot,  in  gen- 
eral, complain  of  the  failure  of  the  court  to  give  in- 
structions which  he  has  neglected  to  ask,  provided 
the  jury  are  left  free  to  act  upon  the  facts,  yet  if  they 
are  not  thus  left  free,  but  are  in  effect  instructed  that 
certain  vital  pointr^  are  entitled  to  no  consideration, 
the  case  is  different.^^  An  explanation  attached  to 
the  record  by  the  judge  below  that "  It  is  perhaps  due 
to  the  court  to  say,  that  if  the  charge  is  not  in  re- 
sponse to  the  instructions  prayed,  it  was  because  the 
counsel  who  prayed  the  instructions,  and  who  spoke 
in  a  low  tone  of  voice,  was  not  understood  by  the 
court,"  can  have  no  bearing  on  the  legal  rights  of  a 
prisoner,^^  nor  by  parity  of  reason  of  any  party. 

§  367.  A  remark,  which  is  in  itself  incorrect,  made 
by  a  judge  in  refusing  an  instruction,  is  not  excep- 
tionable where  it  is  a  mere  abstraction,  having  nothing 
to  do  with  the  matter  in  hand,  and  thus  harmless.'"^ 
And  a  full,  clear,  and  accurate  charge  cures  an  error 
sometimes,  in  refusing  an  instruction  asked  for.^^ 

§  368.  In  general,  it  is  optional  with  a  court  to  re- 
fuse an  instruction  which  is  incorrect,  or  to  modify  it, 
go  as  to  make  it  correct,  and  then  give  it,  as  thus 
modified. 

In  Pennsylvania,  however,  it  is  held  to  be  the  duty 

I''  Bain  v.  Doran,  64  Pa.  St.  ^^  Patterson    v.     People,    46 

124.  Barb.  638. 

^1  Chamblee    v.    Tarbox,    21         ^^  Davis    v.  Perley,    30    Cal. 

Tex.  146.  640. 

^^  State  V.  Christmas,  6  Jones 
L.  (N.  C.)  474. 


326  rsrSTKUCTIONS   A^T)    charges.  [Pakt  II. 

of  the  court  to  qualify  an  instruction,  if  thereby  it 
can  be  adapted  to  its  purpose. ^^  But  the  weight  of 
authority  makes  it  rather  a  matter  of  discretion  than 
of  obUgation,  so  that  it  is  not  error  to  I'cfuse  an  in- 
struction, if  asked  in  terms  which  require  qualifica- 
tion,'*^  on  the  general  principle  that  an  instruction  in 
part  erroneous  may  be  entirely  rejected,'^  and  that  if 
it  admits  of  two  constructions,  one  of  which  is  cor- 
rect, but  the  other  confusing  and  misleading,  it  may 
be  refused. ^^  In  general,  the  right  of  the  court  to 
modify  a  request  is  undoubted,  and  this  may  be  done 
by  change,  or  by  addition. ^^  And  the  reason  given 
by  the  Supreme  Court  of  California  is,  that  "It  is 
very  easy  for  ingenious  counsel  to  so  frame  a  prop- 
osition as  to  state  the  rule  of  law  correctly,  and  yet 
convey  to  the  jury,  who  only  hear  it  read  once,  a  very 
erroneous  impression,  or  to  stop  far  short  of  the 
whole  principle  proper  to  be  stated.  It  would  be 
manifestly  improper  to  give  such  an  instruction  to  the 
jury  without  comment  or  explanation ;  "  and  further, 
"  An  instruction,  as  asked  for,  may  be  so  equivocal, 
that  to  give  or  refuse  it  might  mislead  the  jury,  and 
thus  it  might  have  all  the  effect  of  an  erroneous  in- 
struction. In  such  a  case,  it  is  proper  for  the  court 
to  modify  the  instruction  so  as  to  make  it  plain."  ^^ 

In  the  United  States  Courts,  not  only  may  a  judge 
modify  instructions    asked,  but   even   disregard   the 

15  Hays   V.  Paul,   51    Pa.    St.  ^^  Ralston     v.    Langdon,     26 
139.  Ala.  661. 

16  Grimes  v.  Martin,  10  Iowa,  ^^  People   v.  Dodge,   30  Cal. 
347.  450. 

17  Keenan     v.    Ins.     Co.     12  -°  Rosenbaunis  v.  Weeden,  18 
Iowa,   126  ;    Godbold   v.   Blair,  Gratt.  798, 

27  Ala.  595. 


Chap.  IV.]       MODLFICATIONS   AND   REFUSALS.  327 

written  points  of  counsel,  and  charge  the  jury  in  his 
own  way,  if  he  fairly  submits  the  facts,  and  fully 
gives  his  opinion  on  all  the  questions  of  law  arising 
in  the  case.-^ 

In  Mississippi,  the  right  of  modification  extends  to 
even  correct  instructions ;  so  that  if  a  judge  qualifies 
the  request  presented  so  as  to  express  his  views  of 
the  law,  it  is  not  en'or,  even  though  the  request  itself 
was  also  correct.^ 

Formerly,  the  discretion  of  the  court  was  held 
under  very  rigid  guards  in  California,  where  it  was 
maintained  that  while  an  instruction  asked  for  could 
be  modified  so  as  to  make  the  phraseology  more  in- 
telligible to  the  jury,  the  change  must  not  affect  the 
sense  thereof. ^^  But  a  later  decision  has  very  prop- 
erly overruled  the  former  cases,  and  therein  the  fol- 
lowing sensible  reason  is  given  for  it :  "  To  those  cases, 
so  far  as  they  may  be  construed  to  uphold  the  doctrine 
that  a  party  may  of  right  insist  that  an  instruction 
shall  be  given  or  refused  as  asked,  and  that  a  modifi- 
cation thereof  by  the  court,  whether  right  or  wi'ong,  is 
of  itself  error,  we  are  unable  to  give  our  consent.  It 
is  the  duty  and  province  of  the  judge  to  ex|)ound  the 
law,  and  it  is  his  right  and  privilege,  in  doing  so,  to 
select  and  make  use  of  such  language  and  illustration 
as  in  his  judgment  is  best  calculated  to  explain  the 
same,  and  render  it  clear  to  the  comprehension  of 
the  jury.  Upon  him  the  law  imposes  the  duty,  and 
he   may  determine   the   manner  of  its   performance. 

21  Law  V.  Cross,  1  Black  ^3  Conrad  v.  Lindley,  2  Cal. 
(U.  S.)  533.  173;  Jamson  v.  Quivey,  5  Cal. 

22  George  v.  State,  89  Miss.  490. 
670. 


328  IN'STRUCTIOXS    AND    CHAllGES.  [Part  II. 

Counsel  may  propose  such  instructions  as  their  w  is- 
dom  may  suggest,  and  submit  them  to  the  judge;  but 
beyond  this  they  have  no  legal  right  to  dictate  to  the 
judge  either  the  form  or  substance.  If,  in  the  opinion 
of  the  judge,  such  instructions  are  defective  in  form 
or  expression,  or  erroneous  in  law,  he  may,  at  his 
election,  modify  them  in  either  particular,  and  give 
them  to  the  jury  in  their  modified  form,  or  he  may 
refuse  to  give  them  altogether.  If  error  be  assigned 
upon  such  instruction,  the  test  question  is  not,  Did 
the  judge  modify  the  instruction?  On  the  contrary, 
the  test  is  the  same  as  in  other  cases,  and  is  to  be 
applied  to  the  instruction  in  its  modified  form;  and  if 
it  appear  that  the  instruction,  as  modified,  correctly 
states  the  law,  no  error  has  intervened.  This  court 
passes  upon  instructions,  so  far  as  they  are  given,  in 
the  form  in  which  they  were  received  by  the  jury,  and 
the  fact  that  they  were  prepared  by  counsel,  and, 
before  given,  modified  by  the  court,  cannot  be  re- 
garded as  error  per  se,  or  as  having  any  bearing 
whatever  upon  the  question  of  error."  ^* 

In  Texas,  where  an  instruction  was  asked  as  to  the 
right  of  a  plaintiff  to  recover  for  professional  ser- 
vices in  this  language,  "that  the  plaintiff  was  not 
entitled  to  recover  unless  he  has  proved,  to  the  satis- 
faction of  the  jury,  that  he  w^as  a  regular  physician," 
the  judge  erased  the  word  "regular,"  and  substituted 
the  words  "  skilful,"  and  "  efiicient,"  and  it  was  held 
no  error.^^ 

There  has  been  some  wavering  in  Alabama.  The 
code  (§  2355)  requires  a  correct  charge,  not  tending 

24  Boyce  v.  Stage  Co.  25  Cal.  25  Mays  v.  Hogan,  4  Tex.  26. 
470. 


Chap.  IV.]       MODIFICATIONS    AND   REFUSALS.  329 

to  mislead,  to  be  given,  as  asked.  But  where  it 
seems  to  bear  unequally,  it  may  be  modified  by  an 
additional  exj^lanatory  charge.^'' 

In  Mississippi,  the  com-t  has  the  discretionary  right 
to  modify  even  correct  requests,  provided  the  modifi- 
cations made  properly  declare  the  law.^'' 

In  JSTorth  Carolina,  the  privilege  of  modification 
appears  still  to  be  confined  to  the  phraseology.-* 

§  369.  A  modification  may  be  made  sometimes,  by 
means  of  a  counteracting  instruction,  in  behalf  of  the 
opposite  party;  and  if,  upon  the  whole,  and  by  con- 
stiTiing  the  two  together,  the  law  is  correctly  given, 
the  error  in  the  first  instruction  is  regarded  as  cured.^^ 
And  it  is  held  that  an  instruction  containing  an  illegal 
proposition  can  be  modified,  on  the  suggestion  of  an 
opposite  party.^^  And  in  Alabama,  an  additional 
explanatory  charge  may  be  given,  where  language  is 
ambiguous,  on  request  of  a  party .'^^  And  so  in  Illi- 
nois, where  it  is  held  that  it  is  the  right  of  a  party, 
when  he  fears  that  the  jury  may  be  misled  by  an  in- 
struction, to  ask  such  further  instructions  as  will 
explain  those  already  given,  and  prevent  the  possibil- 
ity of  a  mistake.''^ 

§  370.  Where  a  written  charge  was  given,  with  an 
oral  explanation,  and  the  explanation  was  objected  to 
because  it  was  oral,  and  the  judge  withdi'ew  both  the 
instruction  and  the  modification,  and  reduced  them  to 

26  Bell's    Adm'r  v.  Gray,  35         ^o  Crawford's        Adm'r       v. 

Ala.  209.  Beall's  Ex'r,  21  Md.  209. 

2'  Mask  V.  State,  36  Miss.  94.          3i  Sharp    v.  Burns,    35    Ala. 

28  State  V.  Brantley,  63  N.  0.  654. 

618.  32  Warner   v.   Dunnavan,    23 

29  Van    Buskirk    v.  Day,    32     111.  380. 
111.  260. 


330  INSTRUCTIONS   AND   OHAHGES.  [Pari  II. 

writing,  then  read  them  to  the  jury  as  written,  direct- 
ing them  to  disregard  them  as  first  given,  it  was  sus- 
tained, on  appeal.'^^  And  usually  a  party  has  the 
right  to  require  all  modifications  and  explanations,  as 
well  as  original  instructions,  to  be  in  writing/'^ 

§  371.  It  has  been  held,  in  Minnesota,  that  where 
there  is  a  qualified  form  of  instruction,  it  should  be 
explicit,  and  ought  probably  to  follow  immediately 
upon  the  refusal  of  the  presented  form,  since  other- 
wise the  jury  might  regard  it  as  an  absolute  refusal 
to  charge  as  requested,  and  the  injurious  effect  thus 
produced  will  in  general  be  the  same,  whether  the 
proposition  has,  in  substance,  been  aflirmed  in  other 
terms,  in  a  former  part  of  the  charge,  or  not.  And 
if  the  charge  asked  for  be  correct,  it  should  be  given, 
although  covered  by  the  instructions  already  sub- 
mitted; or,  if  there  be  a  distinction,  it  should  be 
drawn  for  them,  since  here,  also,  the  refusal,  unless 
carefully  guarded  and  explamed,  is  apt  to  confuse  the 
jury,  and  lessen  the  effect  of  the  proposition  already 
stated  to  them.^^ 

§  372.  Modifications  of  an  instruction  asked  should 
be  pertinent  to  the  instruction  as  asked,  and  when  the 
modification  made  is  erroneous,  if  pertinent,  the  judg- 
ment will  be  reversed.'^*^  And  pertinent  also  to  the 
evidence,  and  not  based  upon  a  state  of  facts  purely 
conjectural."^^ 

§  373.  And  great  care  must  be  taken  that  the  mod- 

^  People  V.  Garcia,  25  Cal.  ^  State  v.  Green,  20  Iowa, 
535.  424. 

24  Tenbrook  v.  Brown,  17  ^^  Bain  v.  Wilson,  10  Ohio 
Ind.  411.  St.  14, 

^  Selden    v.  Bank,  3  Minn. 
181. 


Chap.  IV.]        MODIFICATION'S   AND   REFUSALS.  331 

ification  itself  be  not  misleading.  A  defendant  asked 
this  instruction,  that  if  the  jury  "believed  from  the 
evidence  that  plaintiff  and  testator,  in  his  lifetime,  had  a 
settlement  in  January,  1851,  and  in  pursuance  of  said 
settlement  a  note  was  executed  by  defendant's  intes- 
tate to  plaintiff,  and  accepted  by  him,  such  a  settle- 
ment is  a  circumstance  from  which  they  may  presume 
that  the  demands  were  settled  between  the  parties  up 
to  the  time  of  said  settlement."  The  court  modified 
the  instruction  by  appending  the  words,  "provided 
they  find  from  the  proof  that  the  debt  sued  for  was 
included  in  said  settlement."  The  modification  was 
held  to  be  misleading,  for  the  reason  that  it  implied 
that  other  proof,  besides  the  settlement  itself,  was 
necessary  to  a  finding  that  the  demand  sued  for  was 
included  in  the  settlement.^^ 

§  374.  A  modification  is  pertinent  to  the  instruction 
asked,  when  it  does  not  materially  vary  the  principle 
embraced  in  the  request,  or  no  farther  than  to  make 
it  legally  correct.  Thus,  where  the  court  was  asked 
to  charge  that  "  verbal  confessions  of  guilt  are  to  be 
received  with  great  caution,"  and  the  court,  after  the 
word  guilt,  inserted  the  words  "uncorroborated  by 
circumstances,"  it  was  held  no  essential  varying  of 
the  principle  embodied  in  the  request.'^'' 

§  375.  If  there  is  anything  peculiar  in  the  situation 
of  the  parties,  or  their  relations  to  each  other,  which 
would  require  a  modification  of  the  general  rule  of 
law,  and  which  has  escaped  the  attention  of  the  judge, 
it  is  the  duty  of  the  party  affected  thereby  to  call  his 

'*  Thomas,  Exec'r,  v.  Thorn-  ^9  gt^te  v.  Wilson,  8  Clarke 
as,  15  B.  Mon.  (Ky.)  118.  (Iowa)  412. 


332  IN^STKUCTIONS   ANJ}    CHAHGES.  [Part  IL 

attention  to  it,  as,  for  example,  in  the  matter  of  official 
duty.  Thus,  this  instruction  was  sustained  by  the 
appellate  court :  "  If  the  prisoner  had  been  previously 
arrested,  on  the  same  warrant,  by  the  officer,  Brown, 
and  had  escaped  without  questioning  his  authority,  he 
was  not  entitled  to  the  right  to  the  same  extent  to 
demand  the  authority  after  his  escape,  that  he  would 
have  had  if  he  had  not  escaped  from  the  arrest.^" 


CHAPTEE  Y. 

Eepetitio:n's  and  Additional  Instructions. 

§  376.  It  is  the  general  rule,  not  only  that  repeti- 
tions in  charging  a  jury  may  be  refused  properly,  but 
that  they  ought  to  be  discouraged  on  the  ground  that, 
at  the  least,  a  multiplication  of  instructions,  announ- 
cing in  effect  the  same  legal  principle,  tends  only  to 
encumber  the  record,  and  perhaps  to  confuse  the  jury.^ 
And  the  Supreme  Court  of  Illinois  remark,  "  We  do 
not  understand  why  it  is  that  counsel,  where  they  have 
a  good  cause,  will  seek  to  encumber  it  with  such  a 
multitude  of  instructions,  the  almost  invariable  effect 
of  which  is  to  introduce  manifest  error  into  the  record. 
Such  a  practice  does  not  enlighten  the  minds  of  a 
jury  on  the  issues  submitted  to  them,  but  rather  tends 
to  introduce  confusion.  Instructions  should  always 
be  clear,  accurate,  and  concise  statements  of  the  law 

40  State  V.  Phinney,  42   Me.  ^  Sadler  et  al.  Adtn'rs  u.  Sad- 

391.  ler,  16  Ark.  642. 


Chap.  V.]      KEPETITIOXS   AND    RE-IXSTKUCTIONS.  333 

as  applicable  to  the  facts  of  the  case.  It  was  iiever 
contemplated  under  the  provisions  of  the  practice  act, 
that  the  court  should  be  required  to  give  a  vast  num- 
ber of  instructions,  amounting  in  the  aggregate  to  a 
lengthy  address.  It  is  a  mischievous  practice,  and 
ought  to  be  discontinued.  A  few  concise  statements 
of  the  law  applicable  to  the  facts  are  all  that  can  be 
required,  and  are  all  that  can  serve  any  practical  pur- 
pose in  the  elucidation  of  the  case."  ^ 

Yet  it  has  been  held,  in  California,  that  it  may  often 
be  better  to  give  repetitions,  when  asked,  than  to  re- 
fuse them,  because  by  such  refusal  a  pretext  is  af- 
forded for  an  appeal,  which  otherwise  might  not  be 
taken.''  And  yet  this  does  not  appear  to  be  conclu- 
sive, since,  if  parties  seek  pretexts  for  appeal,  these 
are  rarely  wanting  to  them. 

§  377.  It  is  wonderful  how  frequently  the  matter 
of  repeated  instructions  has  come  up  before  the  appel- 
late courts,  notwithstanding  the  clearness  and  reason- 
ableness of  the  rule  that  it  is  not  error  to  refuse  to 
give  instructions  asked  for,  even  if  correct  in  point 
of  law,  provided  those  given  cover  the  entire  case, 
and  submit  it  properly  to  the  jury,  —  which  rule  has 
been  over  and  over  reiterated,  until  one  would  suppose 
the  entire  profession  would  be  thoroughly  imbued 
with  it.* 

2  Adams  v.  Smith,  58  111.  419.     43  Me.  12  ;  Moye  v.  Herndon, 

3  People  V.  Strong,  30  Cal.  30  Miss.  110  ;  Dennis  t;.  McLau- 
155.  rin,   31   Miss.   607 ;      Keech   v. 

*  Laber    v.   Cooper,   1   Wall.  R.  R.  17  Md.  47  ;   Coal  &   Iron 

571 ;     Corny    v.   Tompkins,    17  Co.  27    Md.  603  ;  Goldsboroug-h 

Ga.  351  ;    Oliver   v.    Chapman,  v.  Cradie,  28  Md.  477  ;  R.  R.  v. 

15  Tex.  400;   State  v.  Knight,  Schumaker,  29  Md.   176;  Pela- 


334  IN'STRUCTIOXS    Ai^D    CHAKGES.  [Part  11. 

And  the  objections  against  repetitions  cannot  be 
obviated  merely  by  varying  the  language,  even  sub- 
stantial repetitions  being  alike  censurable,  because 
courts  should  simplify  their  directions  to  the  jury,  and 
not  embari'ass  them  by  elaborations  of  the  same  point 
in  different  ways.^ 

§  378.  Where  it  is  judged  proper  to  repeat  instruc- 
tions, it  has  been  held  that  the  repetitions  will  be  held 
to  the  most  rigid  exactness,  indeed,  to  strict  technical 
correctness.'^ 

§  379.  And  where  they  are  refused,  also,  much 
caution  is  requisite  to  avoid  prejudicing  the  jury 
thereby;  so  that  it  has  been  held,  quite  properly,  in 
California,  that,  in  refusing  such  instruction,  the  court 
should  always,  in  the  presence  of  the  jury,  strictly 
place  the  refusal  on  the  ground  that  equivalent  in- 
structions had  been  previously  given,  that  they  may 

monges   v.    Clark,   9   Iowa,    3 ;  Mo.   162 ;  State  v.  Harald,    38 

Payne  v.  Billingham,  10  Iowa,  Mo.  496. 

360 ;     Kuss    v.    Steamboat,    14         ^  State  to   use,  &c.  v.  King, 

Iowa,  364  ;  Ilarper   v.  Madren,  44  Mo.   241  ;  State   v.  Neville, 

21  Iowa,  40t ;  Brown  v.  Brooks,  6  Jones  L.  (N.  C.)  424 ;  Rice  v. 

3  Ind.  518  ;   Nelson  v.  Hardy,  State,  3   Kan.    142  ;    Maffitt  v. 

TInd.  804;  Mumford  ?;. Thomas,  Cressler,  8  Clarke    (Iowa)  122; 

10  Ind.  167  ;  Hartley  v.  Markel,  Mills  v.    Mabon,    9  Iowa,  485  ; 

44  111.  226;    McKichan   v.  Mc-  State  i'.  Ilockenbeny,  11  Iowa, 

Beau,  45  III.  228  ;  Baker  v.  Rob-  270  ;    Trustees,  &c.  v.  Hill,  12 

inson,  49  111.  299  ;  Chapman  v.  Iowa,  463  ;  Karncy  v.  Paisley, 

Cawrey,  50  111.  514 ;  Hotchkins  13  Iowa,  94  ;   Mason  v.  Jones, 

V.  Hodge,   38  Barb.  123;  Hoi-  36  111.  212;  Hessing  r.  McClos- 

brook  V.  R.  R.  2  Kernan,  236 ;  key,    37    111.    343  ;    Murphy   v. 

Jones  V.  Briscoe,  24  Mo.  502  ;  People,  37  111.  448  ;  Kennedy  v. 

Beale   v.  Cullum,  31   Mo.  258  ;  People,  40  111.  489. 
Gonsalis    v.    Gearhart,   31    Mo.         ^  State   V.  Anderson,  4    Nev. 

685  ;  Bay  v.    Sullivan,  30  Mo.  277. 
191  ;  Gregory  v.  Cheatham,  36 


Chap.  V.]      HEPETITIOXS    A^T)    EE-rNSTIiUCTIOXS.  335 

not  be  misled  on  account  of  the  refusal/  And,  more- 
over, if  this  is  not  done  in  a  criminal  case,  the  Su- 
preme Court  will  reverse  the  judgment,  provided  the 
instruction  requested  was  in  itself  clear  and  explicit, 
and  left  no  reason  for  doubt  or  misconstruction,  being, 
in  a  word,  free  from  objection.^ 

§  380.  IMevertheless,  a  necessity  may  arise  for  fur- 
ther instructions  to  a  jury,  after  the  jury  have  retired 
to  consider  their  verdict.  Thus,  where  the  jury  are 
unable  to  agree,  and  return  into  court,  but  the  attor- 
neys on  both  sides  object  to  their  discharge,  but  re- 
quire them  to  be  confined  until  they  reach  a  verdict, 
and  the  court,  in  the  presence  of  the  parties,  gives 
them  an  additional  legal  instruction  to  meet  the  diflS- 
culties  experienced  by  the  jurors  as  to  matters  of  law, 
and  sends  them  back  to  their  room  for  deliberation .° 
And  this  additional  instruction  may  be  given  by  read- 
ing over  the  evidence  on  both  sides,  or  even  on  one 
side  only.^^  The  jury  themselves  have  a  right  to  come 
into  court  and  ask  for  additional  instructions;  and 
where,  in  a  civil  case,  such  additional  instructions  are 
given  in  open  court,  they  cannot  be  regarded  as  a  privy 
communication  to  them  merely  because  neither  the 
party  complaining  thereof,  nor  his  attorney,  was  pres- 
ent; nor  is  there  any  legal  obligation  upon  the  couii 
to  send  for  absent  attorneys  or  parties,  under  such 
circumstances,  and  delay  proceedings  until  their  ar- 
rival.'^  But  upon  the  coming  in  of  the  jury  disagreed, 

"<  People  V.   Hurley,  8    Cal.          ^  Hogg-  v.  State,  7  Ind.  552. 
392.  10  Byrne  v.  Smith,  24  Wis  69. 

8  People  V.  Hobson,  17  Cal.         ii  Chapman  v.  R.  R.  26  WK 
424.  296. 


336  I]S"STRUUTI0N^S    AKD    CHARGES.  [Pakt  II. 

counsel  have  no  right  to  request  certam  instructions 
for  the  first  time;  ^^  although  it  has  been  held,  in  Ar- 
kansas, that  the  coiu't  may  on  its  own  motion,  after  a 
jury  retires  and  returns  into  court,  it  being  the  rule 
that  the  court  may  instruct  the  jury  at  any  time  on 
its  own  motion  for  the  attainment  of  justice,  the  m.atter 
being  one  of  discretion  not  to  be  interfered  with  un- 
less in  cases  of  flagrant  abuse. ^"^ 

§  381.  Such  additional  instructions  aie,  however, 
in  great  degree  subject  to  the  rule  against  repetitions, 
as  it  is  held  error  for  a  court  to  repeat  several  times, 
on  the  return  of  a  jurj^  into  court  to  report  that  tliey 
cannot  agree,  disjointed  parts  of  his  charge,  since, 
although  "  it  is  well  enough,  when  a  juvj  asks  for  a 
particular  part  of  a  charge  upon  an  indicated  subject, 
for  the  court  to  repeat  that  part  substantially  as  givvm, 
yet  when  a  jury  merely  disagrees  as  to  the  result, 
after  weighing  the  testimony  and  considering  the 
charge,  it  is  error  in  the  court  to  repeat  or  re-charge 
disjointed  portions  of  his  charge,  as  in  such  instance 
a  jury  very  well  may,  and  perhaps  always  will,  con- 
clude that  the  court  means  to  have  them  understand 
that  the  matter  or  question  thus  disjointedly  charged 
upon  is  controlling  in  the  case,  and  will  find  accord- 
ingly." ^*  l^ov  is  the  court  under  obligation  to  reiter- 
ate all  the  charge  favorable  to  the  defendant  in  a 
criminal  case.^^ 

§  382.   When  the  jury,  in  writing,  request  addi- 

^^  Cady    V.  Owen,     34    Vt.  ^^   Swag-gerty    v.     Caton,     1 

598.  Heisk  (Tenn.)  199. 

13  McDaniel  v.  Crosby,  19  ^^  Hatcher  v.  State,  18  Ga 
Ark.  558.  464. 


Chap.  V.]     EEPETITIOXS    Al^TD   RE-rN^STRlJCTIOT^S.         337 

tional  instructions,  and  the  judge  gives  them  in  wri- 
ting in  the  absence  of  counsel,  it  is  held,  in  I*^ew 
Hampshire,  not  to  be  error,  provided  the  application 
and  instructions  are  filed  with  the  verdict,  so  as  to  be 
preserved  in  a  form  to  be  objected  to  by  either  party, 
if  desired.'^ 

§  383.  Wliere  a  court  allows  an  amendment  to  a 
declaration  after  the  argument  and  charge,  and  then 
refuses  additional  instructions  applicable  to  the  amend- 
ment, it  is  held  error  in  Massachusetts,  if  indeed  suit- 
able instructions  can  be  given  to  enable  the  jury  to 
consider  properly  the  issue  presented  by  the  amend- 
ment, under  the  evidence  already  given  •  ^^  otherwise 
there  should  doubtless  be  a  re-trial. 

§  384.  Repetitions  are  proper  where  they  are  need- 
ful to  particularize  a  general  charge  in  which  the  law 
is  correctly  stated,  and  show  its  application  to  a  par- 
ticular point  in  the  evidence  of  the  facts. ^^ 

§  385.  Changes  may  also  be  made  by  a  withdrawal 
of  instructions  actually  given,  which  may  be  done  at 
the  instance  of  the  party  on  whose  request  they  were 
given.'''  And  where  an  instruction  has  been  given  on 
the  concession  of  the  opposite  party,  that  concession 
may  be  withdrawn;  and  then  it  is  the  duty  of  the 
court  to  withdraw  the  instruction,  if  it  be  found  not 
to  express  the  law  applicable  to  the  case,  in  the  ab- 
sence of  concession.'^^ 

^^  Leighton    v.    Sargent,    11  ^^  Harrison  v.  Powell,  24  Ga. 

Foster,  120.  530. 

1'  Johnson  v.  White,  98  Mass.  20  r     ^    ^     State,    29  Md. 

333.  443. 

'^  Rogers   v.    Brightman,    10 
Wis.  64. 

22 


338  LN^STRUCTIONS    AND    CHABGES.  [Part  II. 

§  386.  Jurors  have  no  right  to  communicate  sepa- 
rately with  the  court,  either  in  writing  or  verbally, 
but  must  come  into  court  all  together,  if  they  return 
for  further  instructions  in  a  case;  and  then  a  prisoner 
has  a  right  to  have  further  instructions  given  in  his 
behalf,  on  his  request.'^' 


CHAPTEK  YI. 

Legal  Effect  of  Error. 

§  387.  An  en'oneous  instruction  is  always,  when 
material,  an  infraction  of  the  legal  rights  of  parties, 
inasmuch  as  every  party  has  a  legal  right  to  have  the 
jury  properly  instructed  as  to  his  legal  rights  in  a 
controversy.^  And  so,  if  such  material  erroneous  in- 
struction be  given,  a  judgment  rendered  in  accord- 
ance with  it  will  be  reversed,  unless  it  manifestly 
appear  from  the  whole  record  that  no  prejudice  was 
done  thereby  to  the  party  complaining,  and  that  the 
judgment  was  clearly  correct.  And  particularly  in 
cases  depending  upon  circumstantial  evidence,  which 
can  seldom  be  so  presented  as  to  be  free  from  doubt 
entirely,  and  which,  therefore,  from  their  nature  re- 
quire the  greatest  caution  and  circumspection  both  in 
the  court  and  jury,  and  in  which  the  judgment  of  the 
jury  are  so  conclusive  of  the  case,  it  is  a  matter  of  the 
greatest  importance  that  the  jury  are  correctly  di- 

21  Fisher    v     People,    23  III.         i  Gilkey  v.  Peeler,  22  Tex. 
283.  669. 


Chap.  .VI]  LEGAL    EFFECT   OF   ERKOK.  339 

reeled  as  to  the  law  applicable  to  the  case,  for  it  will 
but  rarely  occur  that  the  court  can  say  in  such  cases 
that  the  jury  were  uninfluenced  in  their  verdict  by 
the  misdirection.^  And,  of  course,  it  is  immaterial  as 
to  what  portion  of  a  cause  the  misdirection  relates,  as 
an  error  relating  to  the  rule  or  measure  of  damages 
will  be  as  fatal  as  one  of  vital  relation  to  the  legal 
right  of  a  plaintiff  to  recover.^ 

§  388.  Although  it  is  true,  on  the  other  hand,  that 
error  will  not  cause  a  reversal  in  most  of  the  states 
of  the  Union,  if  it  appears  from  the  whole  record  that 
substantial  justice  has  been  done,'*  yet  the  presumption 
of  injury  having  been  done  by  the  error  must  always 
be  clearly  obviated,  or  the  cause  will  be  reversed.  In 
an  action  for  personal  injury  by  the  negligence  of  a 
raih'oad  company,  the  jury,  at  the  instance  of  the 
plaintiff,  were  instructed,  that,  if  the  defendant  was 
guilty  of  wilful  misconduct  in  causing  the  injury,  they 
were  not  obliged  to  confine  themselves  to  the  actual 
damage  sustained.  On  appeal,  it  was  urged  that  the 
instruction  was  error,  for  the  reason  that  there  was 
no  evidence  that  the  injury  resulted  from  wilfulness 
or  wantonness  on  the  part  of  the  company;  but  the 
appellee  insisted  that  the  appellant  was  not  injured  by 
the  instruction,  inasmuch  as  the  jury  did  not  award 
vindictive  damages,  the  amount  not  appearing  to  be 
excessive  upon  the  injury  sustained.  But  the  court 
held,  that,  as  the  intention  of  the  jury  had  been  di- 

2  Josephine  (a  slave)  v.  State,  *  Kennedy  v.  People,  40  111. 
39  Miss.  614.  488 ;    Luke    v.  Johnnycake,  9 

3  State   to  use,  &c.  v.  Smith,  Kan.  511. 
31  Mo.  571. 


340  INSTRUCTIONS   AND    CHARGES.  [Puit  II. 

reeled  to  the  question  of  wilful  neglect  as  an  element 
of  increased  damages,  the  presumption  was  that  the 
instruction  coming  from  the  coui-t  had  its  due  influ- 
ence, and  made  its  impression  on  the  minds  of  the 
jury  against  the  corporation.^ 

And  where,  on  the  trial  of  an  indictment  for  murder 
in  the  second  degree,  the  court  erroneous^  instructed 
the  jury  that  the  extreme  limit  of  the  penalty  for  man- 
slaughter was  fourteen  years'  imprisonment,  and  the 
prisoner  was  found  guilty  of  murder  in  the  second 
degree,  it  was  held  that  the  instruction  might  have 
been  prejudicial  to  the  prisoner,  and  the  judgment 
was  reversed  on  this  ground.*' 

It  must  affirmatively  appear  that  the  error  was  not, 
or  else  that  it  could  not  be,  prejudicial,  or  the  pre- 
siunption  of  the  mischievous  consequences  thereof 
will  prevail.''  And  where  it  even  seems  that  the  jury 
by  the  evidence  would  have  been  warranted,  under  a 
proper  rule  of  estimating  damages,  to  find  a  larger 
amount,  yet  if  the  cause  has  been  submitted  with  an 
unproper  charge  as  to  the  rule  of  damages,  it  must  be 
reversed,  as  the  court  will  not  take  the  place  of  the 
jury,  and  say  that  the  verdict  would  have  been  war- 
ranted under  a  proper  rule.^ 

§  389.  Yet,  in  general,  the  correctness  of  the  in- 
structions is  not  inquired  into,  if  it  is  clear  that,  what- 
ever the  rulings  might  be,  there  could  be  no  different 
legal  verdict  in  the  case  upon  the  evidence  adduced;" 

5  R.  R.  v.  Manly,  58  111.   300.  «  gj^^^o^s     v.    Putnam,     11 

6  Hass     V.    State,     lY     Ind.     Wis.  196. 

349.  ^  Devine  u.    Martin,  15  Tex. 

"'  Rogers  v  Brightman,  10  25  ;  Doe,  ex  dem.,  v.  Riley,  28 
Wis.  64.  Ala.  165. 


Chap.  VI.]  LEGAL    EFFECT    OF   EKROR.  341 

or  if  even  there  could  be  a  variance  in  the  verdict  by 
a  possible  exercise  of  the  judgment  of  a  jury,  but  yet 
manifestly  the  verdict  actually  rendered  is  right;  as, 
for  example,  where  a  verdict  for  the  plaintiffs  upon  a 
contract  renders  immaterial  unfavorable  instructions 
upon  the  question  whether  the  contract  had  been  re- 
scinded; ^^  or  where  a  jury  is  erroneously  instructed 
that  they  could  assess  damages  severally  against  a 
number  of  defendants  in  an  action  of  trespass,  but 
before  judgment  on  the  verdict  a  nol.  pros,  is  entered 
as  to  all  except  one  of  them,  and  judgment  taken 
against  this  one  alone;"  or  where  the  court  erro- 
neously instructed  the  jury  as  to  a  waiver  of  an  es- 
toppel, whereas  whether  the  party  were  estopped  or 
not  could  not  vary  the  decision;  ^^  or  where  the  judge 
had  no  right  to  instruct  a  jury  at  all  in  assessing  the 
value  of  real  estate  appropriated  for  a  highway,  yet 
did  so  instruct,  and  there  was  evidently  no  prejudice 
resulting ;  '^  or  where  the  error  was  merely  technical ;  " 
or  where  the  instruction  was  not  supported  by  the 
testimony,  but  not  misleading ;  '^  or  where  the  instruc- 
tion bore  against  the  character  of  plaintiff  by  uuplica- 
tion,  but  without  injury;'*'  or  where  the  verdict  is 
manifestly  in  conformity  with  the  law  and  the  evi- 
dence ;  '^  or  where  the  error  operates  to  the  benefit  of 

^^  Davis  U.Elliott,  15 Gray,  90.  ^^  Anderson  v.  Kincheloe,  30 

"  R.  R.  V.  South,  43  111.  182.  Mo.  520  ;  Blake  v.  Hedges,  14 

12  Adm'r  v.  Maloney,  39  Vt.  Ind.  568. 

684.  1*^  Armstrong    v.    Pierson,   8 

1^  Des  Moines  v.  Layman,  21  Clarke  (Iowa)  29. 

Iowa,  153.  1'  Hassell   v.   Nutt,    14  Tex. 

14  Boynton  v.  Holmes,  38  111.  266. 
61. 


342  INSTEUCTIONS   AND    CHAEGES.  [Part  IL 

the  party  complaining  of  it ;  ^^  or  when  the  erroneous 
instruction  is  immatGrial  in  itself.'^ 

And  the  rule  is  the  same  even  in  a  criminal  case, 
where  no  injury  results  from  error.-''  And  so,  where 
there  is  no  evidence  on  which  to  base  the  instruction, 
or  show  its  relevancy,  the  judgment  below  will  not  be 
disturbed  because  of  the  error  therein,  it  bemg  not 
applicable  to  the  facts  of  the  case.^^ 

§  390.  Of  course,  partial  error  in  an  instruction, 
which  is  of  injurious  effect,  is  as  fatal  as  an  error  ex- 
tending throughout.^^  But  where  the  conclusion  of 
law  is  correct,  a  wrong  reason  assigned  for  it  will  not 
vitiate."^  And  an  instruction,  though  irrelevant  and 
therefore  ordinarily  harmless,  yet  leaving  a  question 
of  fact  to  the  jury,  without  some  evidence  bearing 
upon  the  matter,  is  held  to  be  calculated  to  invite 
them  to  wander  into  the  field  of  conjecture,  and  to  act 
upon  the  uncertain  suggestions  therein  to  be  met.~^ 

§  391.  An  irregular  remark  which  introduces  the 
private  opinion  of  the  judge,  made  in  charging  a  jury, 
which  appears  to  have  been  favorable  to  the  party 
complaining  of  it,  or  at  least  not  to  have  been  preju- 
dicial, cannot  be  successfully  excepted  to  as  error.~^ 

§  392.  An  instruction  as  to  the  plaintiff's  right  of 
recovery,  founded  upon  an  hypothesis  of  fact  which 
takes  from  the  jury  the  finding  of  other  facts  by  which 

^8  Preston  v.  Leighton,  6  Md,  ^  Plank   Road  v.  Hoffman,  9 

88.  Md.  569. 

19  Loudenback  v.  Collins,  4  23  p.upp  y  Qrr,  31  Pa.  St.  519. 
Ohio  St.  262.  24  g^nd   v.  Hall,  8  Jones  L. 

20  Mask  V.  State,  36  Miss.  11.  (N.  C.)  16. 

21  People  V.  March,  6  Cal.  25  McDougall  v.  Shirley,  18 
5^1.  N.  H.  108. 


Chap.  VI.]  LEGAL    EPFECT    OF   ERROR.  343 

the  right  to  recover  may  be  impaired  or  defeated,  is 
of  course  erroneous,  and  fatally  so.  And  hence  an 
instruction  upon  any  given  statement  of  fact  must  al- 
ways be  subordinate  to,  or  in  aid  of,  a  theory  em- 
bracing all  the  material  facts  in  the  case.  And  it  is 
fatal  error  to  grant  an  instruction  to  one  party  incon- 
sistent with  one  granted  to  the  other.  And  it  will 
not  obviate  the  legnl  effect  of  the  error  that  the  proper 
instruction  is  actually  given  in  one  or  the  other,  un- 
less in  the  correct  one  it  is  given  in  such  terms  as  to 
impose  a  limitation  upon  the  adverse  instruction,  so 
as  to  make  nugatory  the  error  therein  contained,^''  — 
the  general  rule  being  that  the  fatal  effect  of  a  sepa- 
rate and  erroneous  charge  is  not  cured  by  a  statement 
of  the  true  rule  of  law  applicable  to  the  matter,  in 
other  portions  of  the  charge  given.^''  But  the  rule  is 
relaxed  when  a  proposition,  too  broadly  stated  in  one 
of  a  series  of  instructions,  is  properly  modified  by  an- 
other. And,  in  like  manner,  where  an  instruction  is 
erroneously  refused,  the  cause  will  not  be  reversed 
for  that  reason,  if  manifestly  the  refusal  wrought  no 
prejudice  against  the  party  requesting  it.^  A  series 
of  instructions  is  to  be  regarded  as  a  whole;  and  if 
thus  the  law  is  fairly  presented,  a  defect  or  impropri- 
ety in  a  particular  instruction  will  afford  no  ground 
for  reversal.^^ 

§  393.   Instructions  must  be  construed  with  regard 
to  the  evidence;  and  where  they  are  correct  as  applied 

26  Adams  v.  Capron,  21  Md.         29  g^ate  v.  McClure,   25  Mo. 
187.  338;     Shaw    v.  Saura,    9    Ind. 

27  Home  V.  State,  1  Kan.  42.     517. 

28  Ruble  i;. McDonald,  18  Iowa, 
493. 


344  INSTRUCTIONS  AND   CIIAKGES.  [Paet  II. 

to  the  evidence,  it  is  no  ground  for  reversal  that  they 
are  erroneous  as  universal  propositions.^" 

§  394.  A  court  cannot  refuse  to  reverse,  however, 
unless  it  clearly  appears  from  the  record  that  no  harm 
actually  resulted  from  the  erroneous  giving  or  refusal 
of  an  instruction.  But  a  judgment  will  not  he  re- 
versed hecause  of  a  refusal  to  grant  a  proper  request, 
if  it  appears  that  the  appellant  derived  all  the  advan- 
tage he  sought  thereby  from  an  instruction  given  on 
request  of  the  opj^osite  party.  But  where  a  correct 
and  an  incorrect  instruction  are  given  on  the  same 
subject,  the  cause  must  be  reversed,  where  it  cannot 
be  ascertained  that  no  injury  resulted,  or  by  which 
instraction  the  jury  were  governed  m  their  decision.^' 

§  395.  'No  matter  how  injurious  an  error  may  be,  a 
party  on  whose  motion  the  instruction  was  given  can- 
not be  allowed  to  complain  of  it,  being  bound  by  his 
own  act.^-  And  in  like  manner,  if  a  party  allows 
incompetent  evidence  to  be  introduced  without  his 
objection,  he  cannot  afterwards  call  upon  the  court  to 
exclude  it  by  instructions  from  the  consideration  of 
the  jury.^^  ;N"or  will  a  judgment  be  reversed  for  error 
if  that  error  is  too  favorable  to  appellant,  and  conse- 
quently could  have  done  him  no  injury.^    (See  §  398, 

§  396.  The  erroneous  admission  of  evidence  will  not 
reverse  unless  it  might  possibly  have  prejudiced  the 

30  Miller  v.  Adm'r,  29  Ala.  ^3  Dick  v.  State,  30  Miss.  594. 
lU.  ^*  Wharton  v.    Littlefield,   30 

31  Haney  v.  Marshall,  9  Md,  Ala.  245  ;  Chissom  v.  Lamcool, 
195  ;  Canby  v.  Frick,  8  Md.  163.  9  Ind.  533. 

32  Flowers  v.  Helm,   30  Mo. 
224. 


Chap.  VI]     LEGAL  EFFECT  OF  EEKOR.  345 

opposite  party ;  ^'^  as  if  the  verdict  must  have  been  the 
same  had,  the  evidence  been  excluded.^*'  Thus  where 
record  evidence  was  improperly  admitted  to  prove  a 
dedication,  but  the  testimony  was  ample  basis  for  the 
verdict  without  this  record  evidence,  the  court  refused 
to  interfere.^^  But  if  evidence  is  admitted  which 
might  have  influenced  the  jury,  the  error  caimot  be 
cured  by  an  instruction  that  the  evidence  is  imma- 
terial."'^ 

§  397.  Where  a  party  complains  of  an  omission  of 
what  might  have  been  proper  to  be  given,  though  not 
sti'ictly  demanded  by  the  case  in  hand,  he  cannot  pre- 
vail when  he  had  made  no  request  for  a  precise  charge 
on  the  specific  point.  Thus  an  agent  sold  wood  of  his 
principal  on  an  agi^eement  that  it  was  in  part  to  be 
applied  to  the  payment  of  liis  own  debt,  which  agree- 
ment was  set  up  in  defence  to  an  action  by  the  prin- 
cipal, and  on  the  trial  the  case  was  treated  by  the 
counsel  and  the  court  as  depending  on  the  authority 
of  the  agent  to  make  that  agreement,  and  the  jury 
were  instructed  that  in  the  absence  of  any  exj^ress 
authority  they  could  only  find  an  implied  one  from 
previous  transactions  of  a  similar  character  sanctioned 
by  the  principal.  It  was  held  that  the  instruction  was 
not  erroneous  for  omitting  to  state  that  a  subsequent 
ratification  by  the  principal  would  have  been  equally 
binding,  since  the  judge  was  speaking  of  an  actual 
authority  as  related  to  the  evidence  in  the  case,  and 
that  if  the  defendant  had  desired  further  instruction 

^  Boyd     i\    Foot,    5    Bosw.  ^"  Connehan  v.  Ford,  9  Wis. 

(N.  Y.)  118.  240. 

36  Picker  v.  Haidorn,  30  Mo.  ^s  r    jj    ^    Baxter,    82  Vt. 

96.  805. 


346  instructio:n^s  and  chauges.         tpart  ii. 

upon  the  effect  of  a  subsequent  ratification,  it  was  his 
business  to  call  the  attention  of  the  judge  to  the  pre- 
cise point.^'  Unless  this  is  done,  the  appellate  court 
will  not  consider  an  objection  to  an  omission  com- 
plained of.^" 

§  398.  In  !N'ew  York  we  find  an  exception  to  the  rule 
stated  above  (§  395),  that  a  party  not  objecting  to  the 
admission  of  evidence  cannot  afterwards  have  it  ex- 
cluded by  instruction,  which  I  judge  to  be  the  general 
rule  on  principle.  But  the  Commission  of  Appeals 
remark  in  support  of  an  adverse  position,  "  It  does 
not  follow  that  the  omission  to  object  to  testimony 
is  a  concession  that  it  is  competent."*'  Quite  true, 
perhaps;  but  it  looks  as  if  it  ought  to  operate  as  a 
waiver  of  the  right  to  object.  Suppose  that  counsel 
would  —  as  under  this  principle  they  would  have  a 
right  to  do  —  reserve  all  their  objections  to  the  end  ni 
a  complicated  case,  relying  upon  instructions  to  throw 
out  what  was  improper ;  manifestly  it  would  introduce 
the  utmost  confusion  into  a  case,  even  if  it  were  not 
absolutely  impossible  by  instructions  to  separate  the 
tangled  mass  so  clearly  as  to  save  the  jury  from  hope- 
less embarrassment.  And  it  scarcely  needs  to  be 
remarked  how  a  party,  consciously  having  a  bad 
cause,  could  resort  to  this  method  of  producing  a  be- 
wilderment tending  to  obscure  the  issues  and  confuse 
the  jury,  and  thus  defeat  the  ends  of  justice. 

§  399.  If  the  evidence  shows  a  different  state  of  facts 
from  those  contained  in  the  pleadings,  it  is  held  in 

^  Lachner  V.  Salomon,  9  Wis.  ■*!  Hamilton  v.  R.  E.  51  N.  Y. 
129.  106. 

40  Chappell  v.  Cady,  10  Wis. 
112. 


Chap.  VII.]       REQUISITES   OF   INSTRUCTIONS.  347 

Missouri  that  a  party  desiriug  instructions  in  accord- 
ance with  the  facts  must  first,  by  leave  of  court,  amend 
his  pleadings.  And  an  instruction  calling  for  a  ver- 
dict, yet  not  covering  all  the  issues  in  the  case,  is 
objectionable  unless  cured  by  other  instructions.^' 

§  400.  Courts  do  not  sit  as  literary  critics,  and  there- 
fore mere  verbal  inaccuracies,  such  as  the  omission  of 
a  connecting  word,  or  the  word  plaintiff  inserted 
where  defendant  was  intended,  are  no  ground  of 
reversal,  unless  they  are  shown  to  have  been  mis- 
leading.*' 

§  401.  Where  the  charge  of  a  judge  is  not  relevant 
to  the  case,  it  matters  not  whether  it  is  erroneous  or 
not;  unless  it  works  manifest  prejudice,  the  case  will 
not  be  reversed  thereon.**   (But  see  Chap.  IX.,  infra.) 


CHAPTER  yn. 

General  Requisites  of  Instructions. 

§  402.  It  is  the  province  of  instructions  to  give  a 
just,  true,  and  correct  exposition  of  the  law,  and  they 
must  be  so  framed  as  not  to  leave  the  jury  to  deter- 
mine the  law  in  a  civil  suit;  as  where  the  court 
charged,  "  We  leave  the  liability,  or  non-liability,  of  the 
defendants  to  be  discovered  and  determined  by  the 
jury  from  all  the  facts  in  the  case."     This  was  held 

42  Budd  V.  HoflPheimer,  52  Mo.  ^  Sinclair  v.  Murphy,  14 
29Y.  Mich.  392. 

*3  Nichols  V,  Mercer,  44  111. 
252. 


348  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

error,  because  it  left  the  jury  to  determine  both  the 
law  and  facts. ^  And  an  instruction,  that  if  the  juiy 
believe  certain  facts,  then  "the  plaintiffs  are  not  at 
liberty  to  establish,  by  any  other  evidence  than  that 
prescribed  by  the  contract,  the  quantity,"  &c.,  of  work 
done,  is  liable  to  the  same  objection,  since  it  leaves  to 
the  jury  the  interpretation  of  the  contract;  ^  and  one 
referring  to  them  the  question  whether  certain  slaves 
were  removed  to  Kentucky  from  Indiana  in  accord- 
ance with  the  laws  of  the  latter  state,  or  of  the  United 
States,  was  condemned  on  the  same  ground.  And  so 
a  charge  must  not  refer  to  the  jury  the  construction 
of  any  provision  in  a  mortgage  of  which  the  validity 
is  controverted  before  them.^  And  so  instructions 
should  not  be  given  which  would  leave  to  the  jury  the 
interpretation  of  an  indorsement  on  negotiable  paper, 
and  leave  them  to  determine  a  case,  special  in  its  cir- 
cumstances, on  the  face  of  the  paper  and  the  custom 
of  bankers,  and  leave  them  to  find  in  a  case,  where 
paper  was  indorsed  "  for  collection,"  and  where  paper 
was  frequently,  in  the  course  of  dealing,  sent  for  col- 
lection only,  because  bankers  testify  that,  by  the  gen- 
eral custom  and  usage  of  bankers,  negotiable  paper  so 
indorsed  and  transmitted  for  collection  would  be  held 
and  treated  as  the  property  of  the  banker  transmit- 
ting it.^ 

§  403.  It  is  not  needful  that  the  entire  law  applicable 
to  the  case  be  presented,  provided  there  is  enough  to 

^  Cook   V.    Mackrell,    70  Pa.  ^  Price  v.  Mazange,  31   Ala. 

St.  12.  701. 

2  R.    R.  V.  Resley,    14    Md.  ^  Sweeney  v.  Easter,  1  Wall. 

425.  166. 


Chap.  VII.]        REQUISITES  OF   IN'STIIUCTIOITS.  349 

attain  the  ends  of  justice/  by  directing  the  minds  of 
the  jury  to  the  real  points  in  controversy/'  and  espe- 
cially if  further  instructions  were  not  asked  for."  JN^or 
is  it  needful  to  use  the  exact  language  of  a  statute; 
and,  indeed,  an  instruction  may  very  closely  pursue 
the  language  of  the  statute,  and  yet  be  erroneous.  It 
should  be  so  explicit,  and  have  such  connection  with 
the  facts  of  the  cas6,  as  to  enable  the  jury  clearly  to 
apply  the  facts  to  the  law  as  expounded  by  the  in- 
struction.^ But  it  is  not  the  duty  of  the  court,  for 
this  purpose,  to  illustrate  a  general  proposition  of  law 
in  every  conceivable  way,  or  in  any  particular  manner, 
without  a  special  request.  It  is  enough  if  the  illastra- 
tion  given  does  not  inculcate  any  false  principle.^ 

§  404.  The  legal  effect  of  an  instrument  admitted  in 
evidence  should  be  explained,  and  especially  if  it 
contains  recitals  likely  to  mislead  the  jury.^*^  And 
sometimes  it  is  held  proper  to  give  a  jury  definite 
instructions  as  to  the  legal  effect  of  one  fact  singled 
out  of  many,^^  as  the  presumption  of  law  arising  from 
possession  by  a  vendor  after  a  sale  of  property.'" 

§  405  .  But  there  must  be  no  charge  on  the  facts  in 
general,  although  in  stating  testimony  it  seems  inevi- 
table to  call  the  attention  of  the  jury  to  the  degree 
of  weight  and  importance  to  be  attached  to  particular 
circumstances,  if  they  are  proved;  and  it  is  held  that 

5  Cole  V.  Cole's  Adm'r,  17  ^  Whitcomb  v.  Fairlee,  43  Vt. 
Tex.  6.  671. 

6  Hessing  v.  McCloskey,  37  ^^  Ballard  v.  Perry,  28  Tex. 
111.  351.  364. 

7  Robinson  tJ.Varnell,  16  Tex.  "  Grout  v.  Nichols,  53  Me 
387.  386. 

8  Ritte  V.  Commonwealth,  18  ^2  Gibson  v.  Hill,  21  Tex.  228 
B.  Men.  35. 


350  IN^STEUCTIOXS   AXD    CHAHGES.  [Part  II. 

"  to  say  that  certain  circumstances  deserve  to  be  con- 
sidered, or  are  entitled  to  great  weight,  is  not  express- 
ing an  opinion  as  to  what  facts  have  been  proved,  but 
only  instructing  the  jury  with  regard  to  the  relative 
materialit}^  and  importance  of  different  portions  of  the 
evidence ;  and  to  assist  and  guide  the  deliberations  of 
the  jury  by  such  comments  is  no  infringement  upon 
their  jirovince,  but  often  a  duty  necessary  to  lead 
their  minds  to  an  enlightened  and  discriminating  con- 
sideration of  the  case."  And  so,  where,  on  the  trial 
of  an  action  by  one  stock  broker  against  another  in 
regard  to  dealings  in  stocks,  a  jury  were  instructed 
that  the  fact  that  both  parties  were  brokers,  and  might 
be  presumed  to  know  the  usages  of  their  business,  was 
entitled  to  great  weight,  it  was  held  no  violation  of  a 
statute  providing  that  the  jury  shall  not  be  charged  in 
regard  to  matters  of  fact,  but  allowing  the  court  to 
state  the  testimony  and  the  law/^  The  limitation  in 
such  matters  is  thus  expressed  by  the  Supreme  Court 
of  Pennsylvania :  "  Care  should  be  taken  always  not 
to  infringe  the  province  of  the  jury  so  as  to  relieve 
the  full  responsibility  of  pronouncing  an  intelligent 
judgment  upon  them  for  themselves."  ^*  But  it  is  a 
necessity  that  instructions  should  always  be  framed 
with  reference  to  the  facts. ^^  And  it  is  held  in  Ver- 
mont to  be  the  pro\dnce  of  the  court  to  instruct  the 
jury  as  to  what  inferences  of  fact  they  would  be  war- 
ranted in  dramng  from  the  evidence  and  facts  proved, 
and  if  the  court  should  not  err  as  to  the  kind  and 

13  Durant  v.  Burt,   98    Maes.  ^^  Porter  v.  Harrison,  52  Mo. 

168.  524. 

1*  Ditmars  v.  Coraraonwealth, 
47  Pa.  St.  337. 


Chap.  VII.]  REQUISITES    OF   INSTRUCTION'S.  351 

extent  of  such  inferences,  an  exception  will  not  be 
sustained,  even  if  the  matter  should  be  so  plain  as  to 
render  it  needless  for  the  court  to  say  anything  about 
it.'®  And  thus  in  South  Carolina,  where  the  evidence 
of  a  defendant's  participation  in  a  trespass  was  wholly 
circumstantial,  and  the  verdict  was  for  the  plaintiff, 
it  was  held  no  error  for  the  judge  to  charge  that 
although  one  or  more  of  the  circumstances  detached 
would  not  authorize  the  inference  of  the  defendant's 
guilt,  yet  that  his  direction  or  consent  to  the  trespass 
might  be  deduced  from  all  the  circumstances,  as  enu- 
merated in  the  charge,  one  of  which  was,  that  the 
defendant,  having  the  opportunity  to  take  the  stand 
and  exculpate  himself,  had  declined  to  do  so.'''  In 
Georgia  it  was  held  that  it  was  not  error  for  the 
court,  after  having  charged  the  jury  as  to  a  presump- 
tion arising  under  a  given  state  of  facts  not  amount- 
ing to  positive  proof  of  the  thing  presumed,  to  add, 
"  But  this  presumption  is  not  conclusive.  It  may  be 
rebutted  by  evidence,  and  it  is  for  you  to  determine 
tvhether  or  not  it  has  been  rebutted."  '^ 

§  406.  But  always  the  jury  must  be  left  free  in  the 
determination  of  facts.  They  may  be  guided,  but  not 
commanded.  And  concerning  a  restriction  imposed 
by  an  instruction  given  in  a  criminal  case  in  Missis- 
sippi, the  court  remarked,  "  It  is  said  that  the  second 
instruction  limited  the  investigation  of  the  jury  to  the 
crime  of  murder,  or  to  the  defence  of  excusable  hom- 
icide, and  that  they  were  not  permitted  to  take  into 

1^  Brewin  v.  Farrell's  Estate,  ^^  Black  v.  Thornton,  31  Ga. 

39  Vt.  210.  641. 

1"  R.  R.  V.  Partlow,  14  Rich 
(S.  C.)  23T. 


352  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

conf?ideration  the  defence  of  manslaughter,  Avhich,  so 
far  as  the  crime  of  murder  is  concerned,  may  l)e  re- 
garded as  a  defence  to  the  prisoner.  The  instruction 
was  no  doubt  intended  to  leave  the  jury  free  to  inves- 
tigate, according  to  the  testimony,  the  degree  of  crime 
of  which  the  accused,  if  guilty  at  all,  was  really  guilty; 
but  it  must  be  admitted,  at  the  same  time,  that  the  in- 
struction, if  taken  strictly  according  to  its  language, 
might  warrant  the  construction  given  to  it  by  counsel, 
and  might  have  confined  the  jury  to  an  investigation 
too  limited.  The  jury  no  doubt,  without  the  instruc- 
tion, would  have  clearly  understood  their  duty,  and 
the  question  is,  whether  it  tended  to  cramp  their  ac- 
tion. In  answering  this  question,  we  think  it  barely 
possible  that  the  instruction  could  have  produced  such 
an  effect.  Our  conclusion  upon  this  point,  therefore, 
is,  that  while  the  instruction  was  wholly  unnecessary, 
and  while  we  are  of  opinion  that  it  did  not  in  the  least 
influence  the  jury,  and  we  would  not  therefore  reverse 
the  judgment  if  this  were  the  only  error,  yet  the  safer 
rule,  unquestionably,  is,  that  where  the  court  under- 
takes to  give  even  unnecessary  instinictions  in  this 
class  of  cases,  the  instructions  should  not  be  framed 
so  as,  even  by  remote  construction,  to  limit  the  free 
action  of  the  jury  in  considering  the  testimony  before 
them." '' 

§  407.  Instructions  must  be  confined  to  the  issues 
and  evidence  in  the  case.  And  where  a  distinct  issue 
is  presented  in  the  pleadings,  the  court  may  charge 
tlie  law  in  relation  thereto,  even  if  the  evidence  be  but 

i»  Cotton  V.  State,   31  Miss.  509. 


Chap.  VII.]        REQUISITES    OP    INSTRUCTIONS.  353 

slight  on  the  particular  point  therein.^"  But  the  plead- 
ings themselves  must  not  be  commented  on.  And 
where  a  judge  said  to  a  jury  that  he  was  "  surprised 
that  no  demurrer  had  been  filed  to  the  bill,  or  a  mo- 
tion made  to  dismiss  it,  but  as  no  one  had  made  any- 
such  motion,  he  would  go  on  and  charge  them  the 
law  in  the  case,"  it  was  held  error,  because  such  re- 
marks were  calculated  to  prejudice  the  jury  in  regard 
to-  the  plaintiff's  case.~^ 

But  it  is  the  duty  of  the  court  to  state  the  issues, 
and  not  leave  it  to  the  jury  to  ascertain  the  issues 
from  the  pleadings ;  ^^  and  they  may  be  properly  in- 
structed to  disregard  all  evidence  not  pertinent  to 
those  issues,  it  appears;  ~^  although  it  is  rather  the 
duty  of  the  court  to  exclude  such  evidence,  as  T  judge. 
And  the  court  should  see  that  particular  questions  of 
fact  propounded  for  answer  are  so  framed  that  each 
shall  distinctly  present  to  the  jury  a  single  material 
fact  involved  in  the  issues,  and  that  they  are  definitely 
and  completely  answered  if  such  answer  is  insisted 
upon  before  the  finding  is  accepted  as  a  special  ver- 
dict.-* 

It  being  the  province  of  the  court  to  define  the 
issues  which  are  formed,  if  there  are  two  issues  fairly 
presented,  it  is  error  to  rest  the  decision  of  the  case 
upon  one  of  them,  where  there  is  evidence  tending  to 
sustain  both;^^  and  where  the  court  submits  issues  to 

20Campy.PhiIlips,42Ga.290.  24  jjogger  v.   Barnes,   16  Ind. 

21  King  V.  Kmg,  37  Ga.  205.  502. 

22  Dassler  v.  Wisley,  32  Mo.  ^  Bradshaw  v.  Mayfield,  24 
498                                '  Tex.   481  ;     Smithwick    v.   An- 

^  White,  Adm'r,  v.  Gray,  32     drews,  24  Tex.  488. 
Mo.  447. 

23 


354  INSTKUCTIONS   AND   CHARGES.  [Part  II 

the  jury  not  raised  by  the  pleadings  or  evidence,  the 
cause  will  be  reversed,  unless  it  is  clear  the  jury  were 
not  misled  thereby.'" 

Care  must  be  taken  that  the  instructions  are  fairly 
and  entirely  based  on  the  issues.  Thus  where,  in  an 
action  of  covenant,  the  plea  in  defence  is  full  perform- 
ance, it  is  error  to  instruct  the  jury  so  as  to  raise  the 
question  of  excuse  for  non-performance.^^  And  v/here, 
in  a  suit  on  an  insurance  policy,  the  jiuy  were  in- 
structed for  the  plaintiff,  that  if  they  found  the  repre- 
sentations true  as  to  the  title,  and  if  they  found  other 
facts  to  be  true,  then  there  was  no  fraud  in  that  re- 
spect, whereas  there  was  no  issue  of  fraud  in  those 
respects,  although  there  was  as  to  other  matters,  it 
was  held  a  departure  from  the  issue.~^ 

And  so  issues  must  not  be  withdrawn  virtually  by 
the  instructions ;  as  in  an  action  of  deceit,  putting  the 
element  of  fraud  —  the  gist  of  the  action — out  of  the 
case ;  ^  or  resting  a  charge  on  immaterial  questions 
of  fact  aside  from  the  ti^ue  issues.^" 

And  where  an  instruction  is  too  narrow  to  cover 
the  merits  of  the  controversy,  it  may  be  as  mischievous 
as  one  too  broad.^^ 

§  408.  And,  as  above  intimated,  instructions  should 
be  based  on  the  evidence  strictly.^-  And  so,  in  the 
absence  of  proof  of  malice,  it  is  error  to  instruct  the 

2«  Love  v.Wyatt,  19  Tex.  312.  ^o  Dunlap  v.Tlobinson,  28  Ala. 

2"  Hooker  v.  Johnson,  10  Fla.  100. 

198.  ^^  Roots    V.   Lyner,    10   Ind. 

28  Insurance    Co.  v.    Nelson,  92. 

65  111.  416.  32  Hamilton  v.  Manuf.  Co.  54 

29  Moffatt  V.  Conklin,  35  Mo.     111.  370. 
457. 


CiiAP.  VII]        REQUISITES   OF   rN'STKUCTIOXS.  355 

jury  as  to  vmdictive  damages."^^  And  in  that  class  of 
cases  sounding  in  damages,  where  the  evidence  is 
conflicting  and  presents  a  difficult  issue,  especially 
where  the  facts  are  calculated  to  touch  upon  the  feel- 
ings and  sympathies,  great  accuracy  should  charac- 
terize the  instructions,  which  ought  to  be  clear  and 
concise,  so  as  to  assist  the  jury  in  reaching  right  con- 
clusions,''* and  not  in  an}"  case  lead  them  to  decide 
upon  any  grounds  except  the  evidence.^ 

§  409.  "Wliile  it  is  error  for  a  court  to  withdraw 
questions  of  fact  in  dispute  from  the  determination  of 
the  jury,  yet  it  must  give  them  the  means  of  proper 
guidance.  And  especially  in  an  important  criminal 
proceeding,  and  where  the  cause  is  complicated,  the 
court  should  specify  to  the  jury  the  controverted 
questions  of  fact,  and  give  clearly  the  law  applicable 
thereto.'^"  And  where  an  error  was  assigned  from 
"  the  recital  in  the  charge  of  the  evidence  in  the  case 
claimed,  as  the  court  understood  it,  by  the  counsel  for 
the  state  and  the  counsel  for  defendant,"  the  court 
above  remarked,  "  It  does  not  appear  from  the  record 
that  this  was  done  in  any  manner  tending  to  prejudice 
the  defendant;  nor  are  such  recitals  of  the  respective 
claims  of  the  parties  improper,  when  fairly  made  for 
the  purpose  only  of  making  a  proj^er  application  of 
the  law  arising  in  the  case,  and  the  jury  are  left  as  the 
unbiassed  triers  of  the  issues  of  fact  in  the  case."'^^ 
However,  where  a  fact  is  made  up  of  different  ele- 

33  R.  R.  V.   Patterson,  63  III.  36  g^ate  v.  Brainard,  25  Iowa, 

305.  672. 

^  R.  R.   V.   Van  Patten,   64  3-  Mirums  v.  State,  16  Ohio 

111.  511.  St.  233. 

^^  Matthews  v.  Hamilton,  23 
111.  4t2 


356  IN^STIIUCTIONS   A^ny   CKARGES.  [Paut  II. 

ments,  these  need  not  be  enumerated,  unless  needful 
to  a  clear  submission;^® 

And  it  is  competent  for  the  court  to  instruct,  that, 
if  from  the  evidence  the  jury  find  certain  facts  are 
proved,  then  certain  legal  consequences  must  follow, 
and  the  law,  as  applicable  to  the  facts  so  established, 
is  for  the  plaintiff  or  defendant,  and  that  they  must 
find  accordingly.''^  And  the  connection  and  effect  of 
the  facts  in  a  case  may  properly  be  pointed  out;^*^  for 
to  submit  a  ground  of  recovery  to  a  jury,  without 
basing  it  on  facts,  is  repugnant  to  justice,  as  well  as 
to  law  and  practice.^'  But  where  a  court  instructs  a 
jury  upon  Avhat  state  of  facts  they  may  find  a  verdict 
for  a  party,  the  instruction  should  include  all  the  facts 
in  controversy^  material  to  the  rights  of  the  parties;^" 
and  then  the  jury  must  be  left  free  to  draw  their  own 
inferences  from  the  facts  involved.^^ 

§  410.  For  it  is  a  settled  and  necessary  rule,  that, 
where  an  issue  is  one  to  be  determined  on  the  whole 
evidence,  instructions  predicated  only  on  a  part  of  it, 
so  drawn  as  to  have  an  effect  adverse  or  contrary  to 
the  logical  inference  from  the  whole,  are  to  be  con- 
demned as  mischievous;^*  for  it  is  manifest  that  it 
distorts  the  case  by  bringing  out  into  undue  promi- 
nence certain  features  of  it,  to  select  from  the  evi- 
dence an  isolated  case,  and  call  the  attention  of  the 
jury  to  its  special  consideration,  although  this  may 

38  R.  R.  V.  Porter,  19  Md.  458.  ^  Gallagher  v.  Williamson,  23 

39  R.R.v.Skeels,  3W.Va.556.  Cal.  331. 

40  Greeley  v.  Thomas,  56  Pa.  ^3  Hakelnath  v.  Stookoy,  63 
St.  35.  111.  486. 

«  Hill  V.  Canfield,  56  Pa.  St.         ^4  Cook  v.  Carr,  20  Md.  404. 
458. 


Chap.  VII.]        REQUISITES    OE   INSTIIUCTIONS.  357 

not  always  require  a  reversal .^^  Thus,  where  a  fact 
was  developed  by  one  witness  in  the  progress  of  a 
trial,  and  at  the  instance  of  the  plaintiff  the  jury  were 
instructed  that  if  they  believed  that  fact  they  should 
find  for  the  plaintiff,  the  court  above  remarked,  "This 
was  wrong.  Instructions  should  be  predicated  upon 
the  whole  case,  and  take  in  all  the  evidence.  Courts 
are  not  at  liberty  to  single  out  a  particular  fact,  and 
tell  the  jury  that  they  must  find  their  verdict  on  that 
fact,  and  thus  virtually  withdraw  all  the  other  testi- 
mony from  their  consideration.  The  verdict  must  be 
founded  upon  a  consideration  of  all  the  evidence."  '^'^ 

So  where  two  joint  defendants,  sued  as  partners, 
offered  a  request  segregating  two  instances  tending 
to  negative  a  partnership,  and  asked  the  instruction 
of  the  court  thereon,  excluding  other  evidence  which 
might  have  induced  the  plaintiff  to  believe  them  part- 
ners, it  was  held  misleading.^^  If  the  plaintiff's  case 
rests  alone  on  the  evidence  mentioned  in  the  instruc- 
tion, it  is  sufiicient;  otherwise,  not ;  ***  and  instructions 
resting  alone  upon  isolated  facts,  or  portions  of  evi- 
dence detached  from  their  connection,  should  always 
be  refused.*^  And  while  the  evidence  may  be  stated, 
yet  the  conclusions  to  be  deduced  therefrom  must  be 
left  exclusively  for  the  jury.^°  And  it  is  even  held, 
that,  although  it  may  be  a  rule  which  juries  should 
observe,  that,  if  possible,  all  the  evidence  is  to  be  rec- 
onciled, and  perjury  not  be   imputed  unless  where 

^^  Grube   v.  Nichols,  36    111.  *^  Pearson    v.    Snodgrass.    5 

93  ;    McCartney  v.    McMullen,  Cal.  479. 

38  111.  237.  49  Gray  v.  Burk,  19  Tex.  232. 

'^  Bank  V.  Currie,  44  Mo.  92.  ^  Ayres  v.  Moulton,  5  Cald. 

47  Folk  V.  Wilson,  21  Md.  539.  156. 


358  INSTRUCTION'S   AND    CHARGES.  [Part  11. 

such  inference  is  unavoidable,  yet  it  is  not  in  any  wise 
the  duty  of  the  court  to  lay  down  this  rule  as  a  I'ule 
of  law  in  submitting  the  case.^'  The  duty  of  the 
court  is  fulfilled  by  grouping  the  evidence  where  it  is 
deemed  necessary,  and  indicating  the  bearing  of  its 
several  parts  upon  the  issues  to  be  decided.'^-  To  as- 
sume what  the  verdict  will  be  is  invading  the  province 
of  the  jury  by  virtually  withdi-awing  the  issues  from 
their  consideration.^^ 

§  411.  An  instruction  should  never  be  argumenta- 
tive, any  more  than  a  pleading.  A  concise  and  brief 
statement  of  the  law  is  all  that  ought  to  be  given  in 
any  case.^*  And,  on  this  principle,  a  comparison  of 
cases  therein  is  to  be  strictly  avoided;  as  where 
counsel  read  a  reported  case,  and  then  asked  the 
court  to  instruct  the  jury  that,  "  unless  they  believed 
the  facts  in  the  case  at  bar  were  stronger  and  more 
conclusive  of  guilt  than  the  facts  in  that  case,  the 
defendant  should  be  acquitted,"  —  which  was  held  to 
have  been  properly  refused  by  the  court.^^ 

§  412.  Mixed  questions  of  law  and  fact  necessarily 
go  to  the  jury  under  instructions. ^"^  But  in  submit- 
ting such  questions,  care  must  be  taken  not  to  leave 
to  them  the  decision  as  to  the  law.  And,  in  a  case 
of  this  kind,  the  Supreme  Court  of  Mississippi  re- 
marked, "This  instruction  submitted  the  whole  law 

61  Hall  V.   Brown,   30  Conn.  80  ;  Thompson  v.  Force,  65  111. 

652.  372. 

^2  Commissioner  v.  Clark,  33  ^^  Blackman  v.  State,  36  Ala. 

N.  Y.  267.  295. 

^  Hawk  V.  Ridgway,  33   111.  ^  Kent  v.  Tyson,  20   N.  H. 

476.  121. 

s*  Merritt  v.  Merritt,    20  111. 


Chap.  VII.]         EEQUISITES   OF   rN^STRUCTIONS.  359 

of  the  case  to  be  determined  by  the  jury.  "Wliether 
the  plaintiff  was  the  owner  of  the  cotton  or  not,  was 
a  question  of  law  to  be  determined  by  the  court,  after 
the  ascertainment  by  the  jury  of  the  facts  of  the  case. 
It  was  the  province  and  duty  of  the  court  to  direct 
the  jury,  that,  if  they  believed  from  the  evidence  that 
such  or  such  were  the  facts,  then  the  plaintiff  was,  or 
was  not,  the  legal  v>wner  of  the  cotton ;  but  to  tell  the 
jury  that,  if  they  believed  from  the  evidence  that  he 
was  the  owner  of  the  cotton,  was  to  leave  them  with- 
out instructions  as  to  the  rules  of  law  to  govern  them 
in  determining  that  issue,  and  to  submit  the  law  of 
the  case  to  them.  This  mode  of  giving  instructions 
is  destructive  of  the  safeguards  which  the  law  throws 
around  legal  rights  by  referring  to  the  courts  the 
determination  of  questions  of  law,  thereby  rendering 
the  rules  of  property  settled  and  stable,  and  removing 
them  from  the  arbitrary  caprices  of  juries."  ^"^ 

§  413.  It  is  not  allowable  for  a  judge,  where  the 
character  of  a  witness  is  called  in  question  on  the 
trial,  to  make  a  remark  from  the  bench  indorsing  his 
respectability;  and  if  the  testimony  of  the  witness  is 
material,  the  remark  is  cause  for  reversal.^^  But,  on 
the  other  hand,  it  was  held  no  error  for  a  judge  to 
remark  in  his  charge  that  there  was  "  an  oddity  and 
want  of  symmetry  in  the  language  [in  slander]  sworn 
to  by  the  defendant,  which  the  jury  might  take  into 
consideration  in  determining  whether  the  defendant 
did  add  said  words  or  not;"  the  court  declaring  the 
true  rule  to  be  that  "  the  expression  of  an  opinion  by 

^"Baldwin  v.  McKay,31  Miss.  ^^  McMinn  v.  Whelan,  27 
366.  Cal.  300. 


3G0  INSTRUCTIONS    AND    OHAEGES.  [Part  II, 

the  judge  as  to  the  character  or  effect  of  evidence, 
leaving  it  to  the  jury,  notwithstanding,  to  decide  the 
question  submitted  to  them,  furnishes  no  ground  for 
exception."  ^®  And  a  judge  may  call  the  attention  of 
the  jury  to  the  fact  that  a  i^arty,  having  opportunity, 
does  not  testify  in  the  case,  as  a  matter  which  they 
might  consider,  and  give  all  the  weight  to  which  they 
might  believe  it  entitled.''"  And,  also,  it  is  held  that 
a  court  may  properly  instruct  the  jury,  that  if  they 
find  a  witness  has  knowingly  given  false  testimony  in 
regard  to  a  material  issue  in  the  case,  they  may  dis- 
regard his  entire  testimony  wherein  it  is  not  corrobo- 
rated.'^ 

§  414.  It  is  no  ground  of  complaint  that  a  judge 
employs  strong  language  in  charging  a  jury.  The 
Supreme  Court  of  Iowa  say,  "  We  know  of  no  reason 
why  a  court  should  not  call  things  by  their  right 
names,  and,  if  it  need  be,  use  strong,  if  correct,  lan- 
guage in  criminal  and  civil  cases  alike,  if  by  so  doing 
a  guilty  man  is  the  more  surely  brought  to  justice. 
It  certainly  is  not  the  fault  of  the  court,  but  of  the 
party  who,  it  may  be,  in  a  thoughtless  and  unguarded 
moment,  has  violated  the  law  of  the  enforcement  of 
which  he  now  complains." "-  And  so,  w^here  a  judge 
in  a  charge  characterized  the  crime  of  robbery  an  out- 
rage, it  was  held  not  calculated  unduly  to  prejudice 
the  cause  of  the  prisoner,  or  do  him  an  injury.''^  But 
where,  on  a  murder  trial,  the  jury  were  instructed 

59  Maybee  v.  Fisk,  42   Barb.  111.  123  ;  McClure  v.  Williams, 
338.  65  111.  391. 

60  Bank  v.  Stone,  50  Me.  595.         ^^  gj-ate  v.  Vance,    17   Iowa, 

61  Rath  V    Wells,    29   N.   Y.  149. 

4n  ;  Howard  v.  McDonald,  45         ^3  People  v.  Pool,  2T  Cal.  573. 


Chap.  VII.]        REQUISITES    OF   INSTKUCTIONS.  361 

that  "The  fact  that  the  deceased  was  a  Chinaman 
gave  the  defendant  no  more  right  to  take  his  life  than 
if  he  had  been  a  white  person;  nor  did  the  fact,  if  you 
so  find  that  the  defendant  was  seeking  to  enforce  the 
collection  of  taxes  against  another  Chinaman,  or  even 
against  his  victun,  give  defendant  any  right  to  take 
his  life;  our  laws  do  not  sanction  the  sacrifice  of  hu- 
man life  in  order  to  enforce  the  collection  of  taxes  or 
licenses;  "  the  court  held  that  the  court  below  had  no 
right  to  use  the  words  "  his  victim,"  because  it  seemed 
to  assume  that  the  deceased  was  wrongfully  killed, 
which  was  the  point  in  issue,  and  calculated  to  preju- 
dice the  prisoner;  '''*  for  courts  in  charging  should  not, 
directly  or  indirectly,  assume  the  guilt  of  the  accused, 
nor  use  equivocal  phrases  which  may  leave  such  ai\ 
impression. 

§  415.  It  is  held  a  sufiicient  presentation  of  the  law 
of  a  case,  where,  although  a  portion  of  the  instruc- 
tions are  objectionable,  yet  as  a  whole  they  are  cor- 
rect,^^  for  they  are  all  to  be  taken  and  construed 
together.^'"  Yet  it  is  held  in  large  measure  discre- 
tionary, and  a  whole  series  may  be  properly  refused 
for  a  single  erroneous  request  therein."^  A  mere  want 
of  methodical  arrangement  will  not  vitiate,  although 
it  is  less  liable  to  misconstruction  to  state  the  pomts 
and  the  qualifications  together  in  logical  connection. 
If  all  together  contains  the  correct  statement  of  the 
law,  it  will  not  be  held  error.*'* 

^*  People  V.  Williams,  IT  Cal.  Iowa,   311  ;  Walker  v.  Collier, 

143.  3T  111.  362. 

^^  Moore  v.  Sanboim,  42  Mo.  ^'  Castner   v.    Steamboat,     1 

490.  Minn.   IB  ;    Bond   v.  Corbett,  2 

66  Marshall  v.  Ins.  Co.  43  Mo.  Minn.  248. 

586;    Hamilton    v.    Bank,    22  ^8  Qug^in  t;.Hunt,6  Minn.375. 


362  INSTRUCTIONS    AND    CHABGES.  [Part  II. 

On  the  principle  herein  stated,  if  an  action  be 
brought  against  a  street-railway  company  to  recover 
damages  for  an  injury  resulting  from  negligence,  and 
on  the  trial  it  appears  that  the  conduct  of  the  plaintiff 
directly  contributed  to  the  injury,  so  that  he  cannot 
recover,  and,  after  the  jury  retires,  an  instruction  ig 
given  them,  omitting  the  element  of  contributory  neg- 
ligence, which  would  in  itself  be  erroneous,  such  an 
omission  therein  affords  no  ground  for  reversal,  if  that 
point  had  previously  been  fully  met  by  other  instruc- 
tions, because  even  in  such  a  case  the  after  instruction 
must  be  construed  with  the  former,  and  all  together 
be  considered  in  their  combination  and  entirety,  and 
not  as  though  each  separate  instruction  was  intended 
to  embody  the  whole  law  of  the  case.^^  But  it  must 
be  clear  that  the  error  is  neutralized;  for,  if  instruc- 
tions stand  merely  in  an  irreconcilable  conflict,  mutu- , 
ally  nullifying  one  another,  the  rule  does  not  apply; 
as,  for  example,  where  the  jury  are  misdirected  on 
behalf  of  the  plaintiff  or  defendant,  and  properly  in- 
structed in  a  series  of  instructions  given  for  the  ad- 
verse party,  the  case  will  be  reversed,  unless  it  appears 
that  the  jury  could  not  have  been  misled/" 

§  416.  A  charge  may  be  general  where  there  is  no 
necessity  for  a  specific  instruction  on  every  point  sep- 
arately presented;''^  as  where,  under  the  circum- 
stances, the  party  could  not  have  been  benefited  by  a 
more  specific  response/"     A  substantial  answer  to  a 

^9  Keon   V.    Railway    Co.  43  "^  Patterson    v.    Kountz,    63 

Mo.  405.  Pa.  St.  246. 

'0  Baldwin   v.  Killian,  63  111.  '^  Deakers  v.  Temple,  41  Pa. 

550.  St.  234. 


Chap.  VII.]       REQUISITES  OF   INSTRUCTIONS.  363 

specific  matter  is  all  that  is  usually  required ;  ~^  al- 
though an  instruction  must  declare  the  law  in  explicit 
and  intelligible  terms  to  the  jury,  upon  the  points 
raised  by  counsel/* 

Wliere  a  more  specific  mstruction  is  desired,  it  is 
the  business  of  comisel  to  particularly  request  it,  after 
the  general  charge,  or  otherwise ;  "^  although  even 
then  the  court  may  refuse^  provided  it  appears  really 
unnecessary  to  charge  in  detail,  when  the  matter  is 
brought  to  the  attention  of  the  court/^ 

But  all  vague  generalities  are  to  be  scrupulously 
avoided;  as,  for  instance,  leaving  the  jury  to  deter- 
mine what  acts  the  law  required  the  plaintiif  to  per- 
form before  he  could  rescind  a  certain  contract; 
which  is  further  vitiated,  however,  by  leaving  a  mat- 
ter of  law  to  the  jury/''  And  also  where,  on  the  trial 
of  a  case  in  which  the  defendant  had  withdrawn  the 
plea  of  the  general  issue,  and  filed  special  pleas,  and 
the  court,  at  the  request  of  the  plaintiff,  instracted 
the  jury  that,  by  the  withdrawal,  the  defendant  had 
admitted  the  material  averments  in  the  declaration, 
without  specifying  what  these  averments  were,  it  was 
held  misleading  and  erroneous/^ 

§  417.  Instructions  should  not  only  be  correct  in 
their  propositions  of  law,  but  should  be  expressed  in 
clear  and  concise  language,  without  the  use  of  mean- 

73  Ins.    Co.  V.  Schreffler,   42         ^6  D^feU   v.    Noble,    14  Tex. 

Pa.   St.    188;   Groft  v.   Weak-  640. 
land,  34  Pa.  St.  304.  "  Qehr  v.  Hagerman,  26  111. 

"'^  Savings   Inst.  v.  Weedon,  442. 
18  Md.  321.  '8  McClure    v.  Williams,    65 

"'^  Skinner  v.  State,30  Ala.524.  111.  390. 


364  INSTRUCTIONS   ANI>    CIIAPtGES.  [Part  II, 

ingless  words,  or  words  tending  unnecessarily  to  em- 
barrass the  opposite  party.''' 

§  418.  Where  a  court  had  given  instructions  for 
both  parties,  and  gave  an  instruction  sua  motu,  it  was 
held  error  to  j^reface  it  with  the  oral  remark,  in  the 
jDresence  and  hearing  of  the  jury,  that  he  had  con- 
centrated in  this  one  all  the  others  contained,  as  em- 
bodying all  the  law  necessary  in  the  casej  whereas  it 
did  not  present  all  the  law  of  the  case,  and  withdrew 
from  the  consideration  of  the  jury  evidence  which 
had  been  introduced  on  the  trial.^*' 

§  419.  It  is  held  that  a  judge,  at  any  time  before 
verdict,  has  a  right  to  withdraw  or  reverse  instruc- 
tions given,  even  without  the  consent  of  the  parties 
to  the  suit.  But,  in  so  doing,  he  should  be  careful 
that  thereby  the  jury  should  not  be  brought  into 
doubt  as  to  the  law  applicable  to  the  question  the}' 
are  to  consider.  And  where,  at  the  request  of  a 
13laintiff,  an  instruction  was  given  to  which  the  de- 
fendant excepted,  whereupon  the  plaintiff  waived  the 
mstruction,  and  the  judge  replied,  "If  the  party  de- 
clines to  receive  it,  I  will  leave  the  matter  as  it  stands 
before  the  jury,"  it  was  held  that  the  jury  were  not 
sufficiently  instructed  to  disregard  the  insti'uction 
given,  and  that,  as  the  matter  about  Avhich  the  in- 
struction was  given  was  one  of  fact  for  them  to  con- 
sider, they  should  have  been  so  instructed.^^ 

79  Tush?;.  Newell,  62  111.  196.         ^i  Eidndge    v.    Plawley,    115 

80  McEwen  v.  Moiey,  60   111.     Mass.  410. 
32. 


Chap.  VIII.]     INSTRUCTIONS   UNCERTAIN,  ETC.  365 


CHAPTER  yrn. 

Instructions  Uncertain  and  Inconsistent. 

§  420.  "We  will  now  turn  our  special  attention  for 
a  while  to  certain  defects  heretofore  incidentally  al- 
luded to,  which  are  pernicious,  and  generally  fatal, 
although  of  course  subject  to  the  general  rule,  that 
defective  or  erroneous  instructions  do  not  constitute 
a  ground  of  reversal,  unless  they  also  are  or  may  be 
misleading,  as  ambiguous  and  inconsistent  or  contra- 
dictory charges  are  almost  sure  to  be. 

§  421.  And  so,  although  an  erroneous  instruction 
given  to  the  jury  may  be  afterwards  qualified  by 
using  apt  words  to  express  the  true  rule  on  the  sub- 
ject, yet  if,  upon  the  whole  charge,  it  is  left  uncertain 
what  is  the  rule  given  or  intended  to  be  given,  the 
judgment  will  be  reversed,  because  the  jury  may  have 
been  thereby  misled,  even  though  there  may  have 
been  express  qualifications  given,  on  purpose  to  guard 
against  misconstructions  of  the  language  employed.^ 

§  422.  The  want  of  a  precise  definition  is  a  com- 
mon ground  of  uncertainty.  And  thus,  where  the 
charge  was  as  follows :  "  The  plaintifi*  alleges  that  he 
was  forced,  against  his  will,  to  take  Confederate 
money,  through  fear  of  personal  violence.  The  rule 
of  law  is,  that  if,  through  present  exciting  fear,  a  per- 
son was  forced  to  take,  in  payment  of  a  debt,  Confed- 

1  R.  R.  Co.  V.  Stallmann,  22  Ohio  St.  1. 


H66  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

erate  money,  such  payment  would  not  be  binding  on 
him,  and  the  debt  would  remain  unsatisfied,  and  he 
would  be  entitled  to  recover  the  same,  with  interest; 
but  if  he  received  Confederate  money  without  objec- 
tion, or  without  force  or  present  fear  of  danger,  such 
reception  would  be  a  valid  payment,  and  the  courts 
of  the  country  would  not  disturb  such  executed  con- 
tracts. Then  look  to  the  proof,  and  see  if  the  plain- 
tiff, under  an  exciting  state  of  fear,  took  the  Confed- 
erate money  contrary  to  his  will.  If  so,  he  would  be 
entitled  to  a  verdict;  if  not,  the  defendant  would  be 
entitled  to  a  verdict:"  it  was  held  erroneous,  from 
want  of  precision.  And  the  Supreme  Court  thereon 
remarked,  "  To  hold  that  every  citizen  who  passed 
or  received  Confederate  treasury  notes,  under  some 
general  or  indefinite  apprehension  that  his  failure  to 
recognize  the  currency  would  give  ofience  to  the 
government  or  any  of  its  ofiicers,  acted  under  duress, 
and  that  his  action  can  now  be  repudiated  and  dis- 
owned, would  open  the  flood-gates  of  litigation,  and 
unsettle  all  dealings  and  transactions  in  this  state,  in 
which  that  currency  was  employed.  It  would  disturb 
the  repose  of  society,  shake  the  titles  to  property,  and 
produce  evil  results  immeasurable  and  incalculable. 
^Nothing  short  of  duress,  in  its  legal  sense,  can  inval- 
idate executed  contracts.  Under  the  law  as  it  for- 
merly existed,  it  was  necessary,  in  order  to  constitute 
duress,  that  there  should  be  some  threatening  of  life 
or  member,  or  of  imprisonment  or  beating  of  the 
party  acting,  or  his  wife,  with  a  view  to  procure  the 
execution  of  the  deed  or  other  instrument;  and  the 
danger  existing  or  threatened  was  required  to  be  per- 


Chap.  VIII. ]      DfSTRUCTIOXS    UNCERTAIN,  ETC.  367 

sonal;  and  danger  to  goods  or  property  was  not  suf- 
ficient to  avoid  the  deed.  Under  the  law  as  more 
recently  declared,  duress  of  the  property,  as  well  as 
of  the  person,  is  held  to  be  sufficient.  It  was  for- 
merly held,  that  if  the  duress  was  by  a  stranger,  and 
the  obligor  was  not  a  party  thereto,  the  agreement 
could  be  avoided.  But  we  are  not  aware  of  any  case 
in  which  it  has  been  held  that  if  a  party  act  under  ^  a 
present  exciting  fear,'  or  an  *  exciting  fear,'  without 
showing  whether  the  fear  was  of  danger  to  life,  limb, 
or  property,  the  act  can  be  legally  avoided;  and  we 
hold  that  his  honor's  instructions  were  erroneous  in 
not  defining  more  accurately  the  nature  of  the  fear."  ^ 
And  in  like  manner,  where  a  court  simply  charges 
the  jury  that  "  Wlien  there  is  conflicting  testimony,  it 
is  for  you  to  determine  under  your  oath  whom,  and 
what  testimony,  you  will  believe,"  and  fails  to  instruct 
them  as  to  what  rules  should  be  observed  in  weio-hino^ 
testunony,  it  is  held  error.'^  And  where  the  charge 
was,  that  "^  fraud  will  not  be  presumed  from  slight  cir- 
cumstances; the  proof  must  be  clear  and  conclusive," 
it  was  held  likely  to  mislead  the  jury  into  the  belief 
that  more  stringent  proof  was  necessary  than  the  law 
requires.  The  court  above  remarked,  "  It  is  not  to  be 
denied  that  such  language  has  been  frequently  used 
by  courts,  and  when  used  by  them  it  expresses  an 
idea  which  means  no  more  than  that  the  proof  must 
be  such  as  to  create  belief,  and  not  merely  suspicion; 
but  juries  cannot  be  expected  to  be  familiar  with  the 
technical  and  stock  phrases  of  the   bench  and  bar. 

'"  Pollings   V.   Gate,    1  Heisk         ^  Wilcox  v.    State,   2   Heisk 
(Tenn.)  102.  (Tenn.)  110. 


368  EN'STRUCTIONS   AND    CIIABGES.  [Pakt  II. 

And  as  there  is  a  well-settled  popular  understand- 
ing of  the  different  degrees  of  proof  required  in  civil 
and  criminal  trials  as  a  basis  of  conviction,  a  jury 
instructed  to  act  only  on  conclusive  evidence  could 
hardly  fail  to  suppose  they  must  disregard  all  bal- 
ancing of  evidence,  and  require  a  case  absolutely  free 
from  any  doubt."  * 

It  is  imperative,  in  every  case,  that  the  principles 
of  law  governing  the  case  should  be  so  plainly  stated 
to  the  jury  that  they  are  thereby  enabled  to  compre- 
hend them.^  And  the  court  thus  comments  on  an  in- 
struction given  in  a  criminal  case :  "  The  charge  of 
his  honor  is  very  elaborate  and  learned.  He  enters 
into  and  discusses  the  distinction  between  fraud  and 
felony.  His  distinctions  are  well  and  ably  drawn, 
and,  to  minds  practised  in  such  discussions,  easy  of 
comprehension,  but  incapable  of  being  understood  by 
the  ordinary  class  of  jurors,  whose  minds  are  not 
trained  in  scholastic  learning."  ^ 

Clerical  errors,  however,  do  not  usually  vitiate ;  as 
where,  in  a  written  instruction,  the  word  "plaintiff" 
is  used  instead  of  "defendant,"  and  the  word  "if"  is 
omitted;''  although,  if  there  be  such  omissions  or 
substitutions  as  to  obscure  the  sense,  it  may  be  error, 
as  it  would  then  fall  under  the  general  rule  that  if, 
from  the  language  of  a  judge,  either  through  ambi- 
guity or  want  of  perspicuity,  there  is  good  reason  to 
believe  that  the  jury  have  been  misled,  the  cause  will 
be  reversed.^ 

4  Watkins  v.  Wallace,  19  "  Nichols  v.  Mercer,  45  III, 
Mich.  77.  251. 

5  Lancaster  v.  State,  3  Cold.  ^  R.  R.  v.  Chenewith.  52  Pa. 
(Tenn.)  343.  St.  382. 

6  Ibid. 


Cha5.  VIII.]      INSTRUCTION'S   imCERTArN",  ETC.  369 

§  423.  Instructions  may  be,  on  the  other  hand,  obscure 
through  their  number  and  verbosity.  The  Supreme 
Court  of  Missoiu-i  remarked,  concerning  a  series  of  this 
class,  that  "  On  account  of  their  exceeding  prohxity 
they  were  not  as  intelHgible  as  they  should  have  been. 
"Wliere  counsel  insist  upon  offering  such  a  multitude 
of  verbose  instructions,  the  obvious  tendency  of  which 
is  to  confuse  the  jury  rather  than  enlighten  or  guide 
them,  it  would  conduce  to  the  administration  of  jus- 
tice for  the  courts  to  refuse  them  altogether,  and  to 
give,  of  their  own  motion,  a  few  clear,  precise,  and 
intelligent  instructions  covering  the  law  in  the  case."^ 

§  424.  And  also  from  being  susceptible  of  a  double 
construction ;  ^^  as  where  the  word  "  executed,"  in  re- 
gard to  a  bond,  was  used  in  the  sense  of  "deliv- 
ered." '^  Or  where  the  phrase  was  used,  that  certain 
circumstances  were  "  evidence  of  fraudulent  intent  on 
the  part  of  the  plaintiff."  Herein  the  court  remarked, 
on  appeal,  "  'Now,  we  think  this  language  is  not  only 
capable  of  being  so  construed,  but  would  be  com- 
monly understood  as  meaning,  not  merely  that  the 
facts  mentioned  would  be  competent  evidence,  proper 
to  be  considered  in  determining  the  question  of  fraud, 
but  would  be  full  evidence  of  the  fraudulent  intent 
of  the  plaintiff,  and  such  as  would  require  them  to 
find  it  as  a  fact.  Most  juries  would  so  understand  it. 
If  the  judge  tells  them  that  certain  facts  are  e^adence 
of  another,  they  would  understand  it  to  mean  sufl^- 
cient  evidence,  and  not  merely  material,  and  tending 

9  State  V.  Ott,  49  Mo.  327.  "  Ward  V.  Churn,  18  Gratt, 

10  R.  R.  V.  Sanger,  15  Gratt.     811. 
231. 

24 


370  ESrSTRUCTIONS   ANJy    CHARGES.  [Part  II. 

to  establish  the  other.  Lawyers  acquainted  with  the 
rules  of  evidence,  and  the  different  functions  of  the 
court  and  jury,  might  infer  only  the  latter  meaning. 
But  we  think  a  jury  would  naturally  infer  the 
former."  ^- 

§  425.  And  there  may  be  also  a  material  omission 
or  evasion.  And  the  rule  is,  that  "Any  material 
omission  or  evasion  whatever,  direct  or  indirect,  by 
way  of  argument  or  otherwise,  or  a  want  of  reason- 
able precision  and  distinctness  in  the  charge,  will  be 
treated  as  error,  except  where  a  refusal  would  have 
been  proper,"  ^^  as  to  the  request  of  counsel,  on  which 
the  charge  was  given.  And  so  —  especially  in  a 
criminal  case,  involving  life  or  liberty  —  it  is  error  if 
the  law  be  only  partially  stated,  although  it  is  not 
certain  that  the  verdict  would  have  been  otherwise 
under  full  instructions.^* 

§  426.  But  instructions  may  be,  and  ought  to  be. 
concise.  (See  §  423,  supra.)  The  Illinois  Supreme 
Court  remarked,  in  a  case,  concerning  this  matter, 
"  Few  instructions  are  drawn  so  that  a  hypercritical 
reader  may  not  find  some  fault,  or  to  which  further 
explanations  might  not  be  given,  which  would  make 
the  real  meaning  more  full  or  apparent  to  the  unin- 
formed. 'Want  of  care'  means  want  of  reasonable 
and  proper  care.  Those  words  are  implied  and  un- 
derstood by  the  ordinarily  intelligent  reader  or  hearer. 
But  few  sentences  are  ever  framed,  in  our  language, 
where  some  words  are  not  implied ;  and  especially  is 

12  Gillett  V.   Phelps,  12  Wis.  13  Hood    v.    Hood,    2    Grant 

399.      See   also    McCrackea  v.     (Pa.)  235. 

Webb,  36  Iowa,  554.  ^^  Crawford  v.  State,  4  Cold. 

(Tenn.)  194. 


Chap.  VITI]     EN^STRUCTIONS   imCERTArN^,  ETC.  371 

it  SO  ill  the  composition  of  our  ancient  law  writers, 
whose  ideas  are  conveyed  in  the  fewest  words  pos- 
sible ;  and  it  is  for  this  peculiarity  that  their  writings 
have  been  so  universally  and  justly  admired."  "  A 
mode  is  always  proper  which  obviates  the  necessity 
of  stating,  and  perhaps  reiterating  hypothetically, 
each  element  of  the  cause  of  action,  before  coming  to 
the  real  point  of  the  instruction.'" 

If  more  full  instructions  are  desired  in  explanation, 
to  avoid  the  misunderstanding  of  language  judged  to 
be  too  concise,  it  is  imperative  upon  the  party  inter- 
ested therein  to  suggest  and  ask  for  more  explicit 
instructions ;  '^  or  even  if  a  generally  correct  charge 
is  obscure  and  confused,  as  to  a  particular  point;  '*^ 
or  where  instructions  are  indefinite,  or  not  sufficiently 
comprehensive.'^ 

§  427.  Instructions  which  are  clear  in  themselves 
may  be  rendered  uncertain  by  an  injudicious  explana- 
tion; as  where  the  jury  were  instructed  that  the  bur- 
den of  proof  was  on  the  plaintiff,  and  that  his  cause 
was  sustained  "if  upon  the  proof  there  was  a  pre- 
ponderance of  evidence,  that  is  to  say,  a  balance  of 
the  probabilities  of  the  case,  in  his  favor."  On  this 
the  Supreme  Court  remarked,  "  The  '  weight '  or  ^  pre- 
ponderance of  proof  is  a  phrase  constantly  used,  the 
meaning  of  which  is  well  understood  and  easily  de- 
fined. .  .  .  But  the  phrase  *  balance  of  probabilities,' 
used  by  the  judge  in  his  instructions  as  equivalent  to 

^'^  Warner  v.  Duiinovan,  23  ^^  Bast  v.  Alford,  22  Tex.  229. 
111.  381.  19  Castle  v.  Bullard,  23  How. 

i«  R.  R.  V.  Payne,  59  III.  542.     (U.  S.)  190. 

1'  Warner  v.   Dunnovan,   23 
111.  381. 


372  IN^STKUCTIONS   A]SD    CHARGES.  [Part  II. 

the  words  ^preponderance  of  proof,'  has  no  well- 
settled  or  clearly  defined  meaning.  It  is,  at  best,  a 
vague  and  indefinite  phrase,  and  would  rather  lead 
the  jury  to  infer  that  they  might  form  their  verdict 
on  a  guess  at  the  truth,  gathered  from  the  evidence, 
than  on  a  real  solid  conviction  of  it,  founded  on  a 
careful  scrutiny  and  examination  of  the  proof.  AYe 
cannot  sanction  an  instruction  which  seems  to  us  to 
introduce  into  the  practical  administration  of  justice 
a  new  phrase  of  doubtful  meaning,  which  tends  to 
cloud  the  meaning  of  that  which  was  before  clear 
and  well  understood,  and  to  confuse  and  mislead  the 
jury  in  the  discharge  of  their  duty."~°  And  so,  where 
a  fact  which,  if  found,  is  conclusive,  is  spoken  of  as 
"  tending  "  or  "  conducing "  to  prove,  it  is  held  mis- 
leading ;  as  in  the  case  of  an  alteration  in  a  written 
instrument,  and  the  instruction  was,  "  If  the  plaintiff 
(the  claimant)  has  failed  to  explain  this  appearance 
in  the  deed  to  the  satisfaction  of  the  jury,  so  as  to 
remove  the  suspicion,  they  are  to  take  this  into  con- 
sideration, as  evidence  tending  to  show  that  the  deed, 
in  its  present  form,  is  not  genuine."  ~'  And  illustra- 
tions, as  well  as  explanations,  must  tend  to  elucidate, 
and  not  to  bewilder.^- 

§  428.  The  following  instruction,  relative  to  a  con- 
tract, was  held  exceedingly  ambiguous.  "  If  the  jury 
find,  from  the  evidence,  that  the  contract  was  never 
delivered,  so  as  to  become  a  fully  completed  contract," 
&c.     And  the  court  said,  "  "Wliat  is  meant  by  the  ex- 

^^  Ilaskins  v.  Ilaskins,  9  Gray         ^^  Whitcomb   v.    Fairlee,   43 
(Mass.)  393.  Vt.  675, 

21  Comstock  V.Smith,  26  Mich. 
314. 


Chap.  VIII.]     INSTEUCTIONS   UNCERTAEN',  ETC.  373 

pression  ^  never  delivered  so  as  to  become  a  fall}^  com- 
pleted contract '  ?  "Was  it  intended  to  ask  the  jury 
to  find  that  the  contract  was  never  delivered?  If  so, 
why  not  stop  there?  And,  besides,  if  it  was  never 
delivered,  why  ask  the  jury  to  further  find  whether 
its  terms  were  complied  with?"^^ 

And,  in  regard  to  the  breach  of  a  contract,  the  fol- 
lowing instruction  was  held  obscure  and  misleading: 
"  If  the  jnry  believe,  from  the  evidence  and  under  the 
instructions,  that  the  defendants  committed  the  first 
breach  of  the  contract  by  ignoring  their  obligations 
under  it,  and  on  account  of  such  breach  by  the  de- 
fendants, the  plaintiff  is  entitled  to  recover  for  the  full 
amount  of  the  work  done  by  him,  at  the  time  the  de- 
fendants took  possession  of  the  building,  to  be  esti- 
mated according  to  the  original  contract  price ;  if  the 
jury  find,  from  the  evidence,  that  such  work  has  not 
all  been  paid  for ;  "  —  the  Supreme  Court  remarking 
thereon,  "This  instruction  was  obscure,  and  calculated 
to  mislead  the  jury.  They  were  left  to  wander  in  a 
field  of  too  much  conjecture  and  indefiniteness  in  find- 
ing whether  the  defendants  had  ignored  their  obliga- 
tions under  the  contract."  ~* 

§  429.  Where  the  court  refused  the  following  re- 
quest, in  a  criminal  case,  "If  the  defendant  believed 
that  Gardiner  had  seduced  his  wife,  and  such  belief 
was  the  result  of  the  deprivation  of  the  reasoning  fac- 
ulties, and  also  believed  that  he  would  be  justified  in 
shooting  Gardiner,  he  is  entitled  to  such  a  verdict  as 
will  transfer  him  from  the  category  of  sane  to  insane 

23  County  V.  Pitcher,  36  Iowa,  ^  Society  v.  Hubbell,  62  III. 
598.  163. 


374  rNSTRUCTIONS   AI^D    CHARGES.  [Part  II. 

criminals,"  the  refusal  was  held  proper;  and  the  Su- 
preme Court  remarked,  "  While  we  have  held  that  the 
refusal  of  a  court  to  give  a  proper  instruction  is  error, 
notwithstanding  the  court  has  charged  the  same  prop- 
osition in  substance,  unless  it  informs  the  jury  that 
the  refusal  is  for  this  cause,  yet  we  have  also  held 
that  the  instruction  so  asked  must  be  free  from  ob- 
jection. It  must  not  be  ambiguous  or  obscure,  or 
calculated  to  mislead  or  confuse  the  jury.  We  think 
this  instruction  is  of  that  character.  The  jury  are 
not  supposed  to  be  lawyers,  and  they  may  very  well 
have  been  puzzled  to  know  what  sort  of  ^  a  verdict 
would  transfer  a  prisoner  from  the  category  of  sane 
to  insane  criminals.'  To  justify  us  in  reversing  a 
judgment  because  an  instruction,  given  already  in 
substance,  has  not  been  'repeated,  the  language  of  it 
should  be  clear  and  explicit,  and  leave  no  room  for 
doubt  or  misconstruction."^ 

§  430.  An  instruction  may  be  eiToneous  in  not 
drawing  a  distinction  between  a  general  and  special 
relationship  and  duties  correspondent;  as,  for  ex- 
ample, in  the  matter  of  an  agency. ""  And  in  not  de- 
fining what  circumstances  or  lapse  of  time  will  bar  a 
claim  under  the  statute  of  limitations ;  ~"  or  what  cir- 
cumstances will  constitute  such  a  fraud  as  a  defendant 
can  properly  claim  to  be  relieved  against.^^ 

§  431.  Where  there  is  a  contract  between  two  par- 
ties, and,  in  consequence  of  the  disability  of  one  of 
them,  there  is  a  temporary  suspension  of  the  contract, 

25  People  V.  Hobson,  IT  Cal.  27  piack  v.  Ncill,  22  Tex. 
430.  256. 

26  McDonell     v.     Dodge,    10 
Wis.  110. 


Chap.  VIII  ]     INSTRUCTIONS   UNCERTAIN,    ETC.  375 

and  substitution  of^another  for  the  time  being,  an  in- 
struction merely  general  to  the  case,  and  not  speci- 
fying to  which  one  of  these  it  applies,  is  held  to  be 
properly  refused  for  the  uncertainty.^^ 

§  432.  It  has  been  held,  that,  where  a  counsel  reads 
clearly  and  distinctly,  in  the  presence  of  the  jury,  a 
principle  of  law  from  the  decision  of  a  reported  case, 
and  the  judge,  in  his  charge,  says,  "  I  charge  you  that 
the  decision  just  read  is  law,"  and  proceeds  to  apply 
it  to  the  case,  without  repeating  the  law  of  the  decis- 
ion in  the  hearing  of  the  jury,  it  is  sufficient,  —  the 
rule  being  that,  if  the  law  is  given  in  charge  so  plainly 
that  the  jury  can  have  no  difficulty  in  understanding 
it,  whether  it  is  repeated  in  their  hearing  by  the 
judge  himself,  or  read  by  another  and  sanctioned  and 
charged  by  him  as  read.^^  'No  doubt  this  is  coi-rect; 
but  the  circumstances  would  hardly  ever  fulfil  the 
strict  condition  of  the  rule,  so  that  such  a  practice 
will  never  be  generally  approved  by  the  appellate 
courts,  I  judge. 

§  433.  We  have  already  seen  that  instructions  are 
construed  together  as  a  whole,  and  that,  if  so  consid- 
ered, they  clearly  set  forth  the  law  of  the  case,  an 
error  in  some  portions  will  not  vitiate.  But  where 
they  are  set  forth,  and  retain  merely  an  antagonistic 
relation,  the  error  of  one  cannot  be  cured  by  another. 
The  curative  instruction  must  have  the  effect  of  vir- 
tually withdrawing  the  one  or  others  containing  the 
error,  so  far  as  they  are  so  erroneous  at  least.^''    And, 

28  Chipman  v.  Adm'x,  16  Md.  30  Kirland  v.  State,  43  Ind. 
160.  154. 

29  Dillon  V.  McRae,40  Ga.  107. 


376  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

a  fortiori,  if  a  court  give  an  instruction  which  is  cor- 
rect, but  afterwards  nulhfied  by  another,  the  judgment 
must  be  reversed.^'  And,  also,  where  an  instruction 
is  given  for  one  party,  and  one  inconsistent  with  it 
for  the  other,  it  is  misleading  and  fatal  ;*^~  which  is 
apt  to  be  the  case  where,  although  not  directly  antag- 
onizing, yet  one  has  application  to  one  theory,  and 
the  other  to  a  different  theory.  And  so  the  conflict 
may  be,  as  it  were,  latent,  yet  not  the  less  confusing 
to  a  jury ;  as  where,  in  effect,  one  instruction  was,  that 
a  plaintiff  was  entitled  to  a  verdict  if  certain  engineers' 
estmiates  were  fraudulent,  and  another  was,  in  effect, 
that  he  was  not  entitled  to  a  verdict  even  if  those 
estimates  were  fraudulent.^^ 

In  a  case  where  a  party  sued  a  railroad  company 
for  the  value  of  a  mule  alleged  to  have  been  killed  by 
coming  into  collision  with  a  train  of  cars,  the  court 
first  laid  down  the  rule  concerning  common  carriers, 
and  then  concerning  injuries  to  third  persons ;  and  so, 
in  the  first  place,  charged  the  jury  that  the  company 
were  bound  to  the  utmost  care,  and  then  gave  this 
instruction :  "  The  railroad  company,  in  order  to  pre- 
vent injury  and  destruction  to  stock  on  their  track, 
are  only  bound  to  use  such  reasonable  care  and  pru- 
dence in  running  as  a  prudent  man  engaged  in  the 
same  business  would  use  to  prevent  such  injury  or 
destruction."  The  Supreme  Court  remarked,  "The 
instruction  given  for  the  plaintiff  is  not  reconcilable 
with  that  given  for  the  defendant,  and  the  jury  were 

31  People  V.  Campbell,  30  Cal.         33  ^    r,  ^_  Lafferty,  2  W.  Va. 

816.  in. 

32  R.R.v.  Blocker,  27  Md.  285. 


Chap.  VIII. J     INSTRUOTIOXS    UNCERTArN',  ETC.  377 

left  without  any  certain  rule  to  guide  them;""^^  which 
is  always  necessarily  the  case  where  one  instruction 
merely  contradicts  another  without  neutralizing  it.'^^ 
Even  seeniiug  conflicts  should  be  carefully  avoided, 
and,  it  is  held,  can  usually  he  avoided  by  stating  the 
facts  to  which  the  proposition  of  law  is  applicable.^^ 

§  434.  Inconsistencies  are  apt  to  arise  from  inad- 
vertence on  the  part  of  the  court,  inasmuch  as  the 
mstructions  given  are  usually  drafted  by  the  opposite 
counsel,  each  from  his  own  stand-point  in  the  case, 
and  are  given  sometimes  after  a  hurried  examination 
by  the  judge,  and  so  the  jury  are  involved  in  doubt 
and  uncertainty.  It  would,  of  course,  be  proper  for 
the  jury  to  return  into  court,  and  receive  additional 
instructions;  but  they  too  rarely,  perhaps,  take  the 
trouble  to  do  this,  and  often  do  not  realize  that  they 
may  do  so  properly. 

§  435.  They  may  come,  however,  with  regard  to 
difierent  standards  of  estimating  damages  ;^^  or  to 
different  causes  of  loss  in  the  same  matter.'^^ 

§  436.  In  an  action  on  a  guaranty  of  the  payment 
of  a  note,  the  consideration  of  the  guaranty  being  one 
dollar,  the  jury  were  instructed  (1)  That,  unless  the 
consideration  mentioned  in  the  guaranty  had  been 
paid,  the  defendant  was  not  liable ;  and  (2)  That  he 
was  liable,  if  his  guaranty  was  the  inducement  for 
selling  the  maker  the  goods  for  which  the  note  was 


34  R.  R.  V.  Miller,  40  Miss.  48 
R.  R.  V.  Kendrick,  ibid.  388. 

35  R.  R.  u.  Dunn,  61  111.  388 
Kinger  v.  State,  45  Ind.  521. 

36  Clem  V.  State,  31  Ind.  484 
Bradley,  v.  State,  ibid.  492. 


37  Coal  &  Iron   Co.  v.  Tilgh- 
man,  13  Md.  85. 

38  Ferguson  v.  Adm'r,  1  Met. 
(Ky.)  83. 


378  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

given.  These  were  held  repugnant,  and  because  of 
the  omission  to  state  that  the  one  dollar  must  have 
been  paid,  or  there  must  have  been  some  other  con- 
sideration sufficient  to  support  the  agreement."^'-' 

§  437.  To  vitiate,  however,  the  contradiction  must 
not  merely  be  qualifying  in  its  effect,  but  vitally  an- 
tagonistic. And  the  Supreme  Court  of  ISTevada  has 
well  remarked  that  "  The  rule  that  a  case  must  be  re- 
versed where  instructions  on  a  material  point  are  con- 
tradictory, is  not  as  unqualified  as  appellant  contends 
for.  If  one  party  asks  for  an  instruction  that  is  given 
by  the  court,  laying  down  a  rule  of  law  in  language 
too  broad  and  unqualified,  and  the  other  side  then 
asks  an  instruction,  which  is  also  given,  and  which 
qualifies  and  limits  the  former  instruction,  and  in  some 
respects  contradicts  it,  if  the  second  instruction  con- 
tains only  sound  law,  the  conflict  between  the  two 
instructions  is  not  an  error  of  which  the  party  can 
complain  who  obtained  the  instruction,  which  was  too 
broad  and  unqualified.  It  might  be  that  this  was 
error  injurious  to  the  other  side,  for  the  jury  might 
not  understand  that  one  instruction  was  a  modification 
of  the  other,  and  might  be  misled  by  the  too  broad 
language  of  the  first.  But  they  could  not  do  wrong 
by  being  governed  by  the  modification."  ^^ 

89  Sears  v.  Lery,  19  Wis.  98.      ^  Lobdell  v.  Hall,  3  Nev.  515. 


Chap.  IX.]         IN^STKUCTIONS   ABSTKACT,  ETC.  379 

CHAPTER  IX. 

Instruction's  Abstract  and  Inapplicable. 

§  438.  The  Supreme  Court  of  the  United  States 
has  declared,  in  regard  to  this  class  of  instructions, 
and  the  mischievous  effects  thereof,  that  "  It  is  clearly 
error  in  a  court  to  charge  a  jury  upon  a  supposed  or 
conjectural  state  of  facts  of  which  no  evidence  has 
been  offered.  The  instruction  presupposes  that  there 
is  some  evidence  before  the  jury  which  they  may  think 
sufficient  to  establish  the  facts  hypothetically  assumed 
in  the  opinion  of  the  court;  and  if  there  is  no  evidence 
which  they  have  a  right  to  consider,  then  the  charge 
does  not  aid  them  in  coming  to  correct  conclusions, 
but  its  tendency  is  to  embarrass  and  mislead  them.  It 
may  induce  them  to  indulge  in  conjectures  instead  of 
weighing  the  testimony."  ^  And  it  is  •  held  that,  in 
cases  where  the  testimony  is  conflicting,  and  the  court 
gives  an  instruction  wholly  irrelevant  and  calculated 
to  mislead  the  jury,, although  correct  as  an  abstract 
question  of  law,  it  will  be  presumed  that  they  were 
misled  thereby,  and  the  judgment  will  be  reversed.^ 
And  so  a  judge  may  rightly  decline  using  the  very 
words  in  which  an  important  legal  principle  has  been 
accurately  laid  down  in  another  case;  for  sometimes 
circumstances  attending  a  trial  may  render  it  improper 
to  define  a  legal  principle  in  the  very  words  that  were 

^  U.  S.  V.  Breitling,  20  How.         ^Norfleeti;.  Sigman,  41  Miss. 
254;  Bank  v.  Eldred,   9  Wall.     631. 
654. 


380  IN'STEUCTIOXS   AND    CHAKGES.  [Part  II. 

strictly  correct  in  another  case.^  And  I  apprehend  a 
non-observance  of  this  rnle  is  the  origin  of  most  in- 
appUcable  and  abstract  instructions. 

§  439.  It  is  not  error  to  refuse  to  instruct  a  jury 
that  a  conversation  not  reduced  to  writing,  when, 
after  the  lapse  of  six  years,  it  is  detailed  by  a  witness, 
is  to  be  received  with  caution;  because,  if  such  an 
mstruction  amounts  to  anything,  it  is  a  mere  abstrac- 
tion, which  the  corn!  may  in  its  discretion  give  or 
withhold.* 

§  4iO.  A  charge  that,  if  the  conduct  of  a  defendant 
known  to  the  plaintiff  were  of  such  a  character  as 
that  business  men  would  ordinarily  infer  therefrom 
the  authority  of  an  agent  to  borrow  money  and  give 
a  promissory  note  for  it  in  the  defendant's  name,  he 
would  thereby  be  rendered  liable  for  the  act  of  the 
agent  in  so  doing,  was  held  erroneous,  "because  it 
would  be  to  make  the  ordmary  inference  of  business 
men  a  test  or  rule  of  agency,  independent  of  the  agree- 
ment of  the  parties.  It  would  be  far  more  difficult  to 
unravel  the  intricacy  of  what  acts  would  be  sufficient 
to  create  this  inference,  than  to  determine  whether 
the  declarations  and  conduct  of  the  defendant  were 
such  as,  in  the  opinion  of  the  jury,  authorized  the 
plamtiff  to  believe  that  he  had  conferred  the  power 
on  the  agent."  ^ 

§  441.  All  requests  for  instructions  must  have 
these  requisites,  or  the  court  will  not  be  bound  to 
notice  them;  namely,  they  must  be  written  where  the 
statute  requires  writing,  must  be  applicable  to  the 

sState  y.  Parker,  Phm.(N.C.)          ^  Qolding    v.    Merchant,    43 
473.  Ala.  719. 

4  Parker  v.  Fergus,  52  V\.  419. 


Chap.  IX.]         IN^STKUCTIONS   ABSTRACT,  ETC.  381 

facts  in  the  case,  must  not  assume  that  to  have  been 
proved  which  is  not  in  proof,  and  must  be  correct  in 
law,  or  at  least  capable  of  being  made  so  by  a  modifi- 
cation given  by  the  court.*^ 

§  442.  But  qualifications  themselves  may  be  ab- 
stract and  inapplicable  by  being  connected  with  mat- 
ters wholly  disconnected  with  the  instructions  to 
which  they  are  attached.  In  a  case  of  this  kind,  such 
a  qualification  was  held  error;  and  the  court  remarked, 
"  In  ruling  the  charge  of  the  judge  as  erroneous,  we 
would  not  be  understood  as  denying  his  right  to  qual- 
ify propositions  reqiiested  to  be  presented  by  him  to 
the  jury  when  they  are  not  strictly  legal  or  pertinent, 
or  when  they  require  some  addition  or  diminution  to 
make  them  entirely  correct,  or  are  unauthorized  by 
the  facts  in  the  case;  but  as  the  matters  involved  in 
the  qualification  made  by  the  judge  were  entirely  sep- 
arable from  the  request  made,  and  substantially  dis- 
connected with  it,  those  matters  of  qualification  should 
have  been  presented,  if  authorized  at  all,  not  in  con- 
nection with  the  instruction  requested,  but  indepen- 
dently." ' 

§  443.  An  instruction  submitting  to  a  jury  the  find- 
ing of  a  fact  concerning  which  there  is  no  legal  proof, 
is  abstract,  and,  if  material,  the  cause  will  be  reversed.^ 
Or  one  which  refers  to  another  case,  and  attempts  to 
point  out  to  the  jury  the  particulars  in  which  it  re- 
sembled, or  difiered  from,  the  one  in  hand,  may  be 
properly  refused,  as  a  departure  from  the  true  investi- 

6  CaD-.pboll   V.  Miller,  38  Ga.          ^  j>_    j>,   ^     Harper,   29  Md. 
312.  336. 

"^  Doe,  ex  dem.  of  Stephens, 
V.  Roe,  &c.,  31  Ga.  292. 


382  IXSTKUCTIONS   AND    CIIAKGES.  [Part  II. 

gation  of  the  questions  before  the  court.^  And  it 
makes  no  diiforence  that  an  instruction  announces  a 
clear  proposition  of  law ;  if  it  departs  from  the  case, 
and  is  inapplicable,  it  will  not  be  sustained.^**  For,  as 
it  has  been  well  said  by  the  Supreme  Court  of  Flor- 
ida, "  Courts  sit  to  decide  causes,  and  not  to  moot 
points  of  law ;  and  the  court  cannot,  in  the  progress 
of  a  trial,  be  required  to  give  opinions  or  instructions 
upon  general  and  abstract  propositions  of  law.  The 
court  may  and  should  refuse  to  give  an  opinion  or 
instruction  on  such  points;  and  if  the  refusal  to  give 
the  instruction  asked  is  appealed  from,  the  appellate 
court  will  not  interfere,  unless  it  can  be  shown  that  the 
instruction  asked  was  warranted  by  the  testimony,  and 
ought  to  have  been  given."  "  The  matter  has  been 
brought  up  very  often  in  the  courts,  and,  in  the  great 
multitude  of  decisions  rendered,  there  is  not  a  single 
dissentient  voice ;  and  yet  counsel  persist  in  trying  to 
support  instructions  liable  to  the  objection  that  they 
are  abstract  and  inappropriate  to  the  case  at  bar. 
This  must  arise  from  a  want  of  discretion  in  applying 
to  practice  the  rule  universally  approved  in  this  regard. 
And  our  leading  design  herein  will  be  to  present  illus- 
trations of  the  principle  in  its  actual  bearings  on  ex- 
amples afforded  by  the  reports,  without  noting  any 
further  the  mere  approval  by  the  courts  of  the  doc- 
trine announced  thereon. 

9  Harvey    v.     Skipwith,     16  Co.   v.    Parsons,    44    111.    313; 

Gratt.  405.  Bartholomew    v.    Ins.    Co.    25 

1^  Jennison   v.  Bearing's  Ex-  Iowa,  618. 
ec'rs,  41  Ala.   290  ;  Kariger  v.         ^^  Whitner     v.    Hamlin,     12 

Greb,  42  Mo.  44  ;   Brownfield  v.  Fla.  24. 
Brownfield,  43  III.  154  ;  Express 


Chap.  IX.]         rN^STKUCTIONS    ABSTRACT,  ETC.  383 

§  444.  It  is  the  duty  of  a  court  to  apply  a  propo- 
sition of  law  to  the  facts  of  the  particular  case  at  bar; 
and  hence  the  following  instruction  was  condemned 
as  general  and  abstract:  "The  jury  in  this  case  are 
instructed  that,  in  any  case  where  a  tender  should  be 
made  in  law,  if  the  tender  is  waived  by  the  party  who 
should  receive  it,  it  is  quite  the  same  as  though  it  was 
made.'"-  And  also  this:  "All  the  allegations  in  the 
petition  which  are  not  denied  specifically  in  the  an- 
swer, are  to  be  taken  as  true."  '^ 

But  the  consequences  of  a  general  unqualified  de- 
nial of  instructions,  because  of  inapplicability,  are 
thus  set  forth  by  the  Supreme  Court  of  Pennsylvania : 
"It  startles  one  to  hear  it  unqualifiedly  denied  that 
one  copartner  is  not  answerable  for  the  wilful  torts 
of  others  of  the  firm;  that  a  firm  is  not  to  be  held 
responsible  for  such  torts  committed  by  a  servant  or 
an  agent;  that  when  committed  by  a  servant  of  his 
own  mere  motion,  or  solely  by  a  member  of  the 
firm,  the  firm  is  not  to  be  answerable ;  and  that  part- 
ners can  only  be  made  to  respond  for  trespasses  in 
which  each  is  an  actor.  The  afllrmative  of  these  po- 
sitions is  the  substance  of  the  first  three  points  of  the 
defendant  below,  and  they  were  negatived  without  a 
qualifymg  remark.  It  is  quite  possible  that  they  were 
inappHcable  to  the  circumstances  of  the  case,  at  least 
deemed  to  be  so  by  the  learned  judge;  but  while  they 
were  true  as  general  propositions,  it  would  have  been 
much  better  to  refuse  to  charge  as  requested  by  a 
qualification  of  inapplicability.    Indeed,  I  doubt  much 

12  Turner   v.   Loler,  34    Mo.         ^^  Coal  &   Oil  Co.  v.  R.   R 
461.  45  Mo.  85. 


384  INSTRUCTIONS   AND    CHARGES.  [Pakt  IT. 

if  the  general  denial  did  not  mislead  the  jury  in  this 
case."  " 

§  445.  An  instruction  concerning  an  implied  agency, 
namely,  "  If  any  person  publicly  acts,  with  the  knowl- 
edge of  another  and  without  objection,  as  the  general 
agent  or  manager  for  that  other,  such  principal  will 
be  bound  by  the  act  of  such  agent,  although  he  may 
not  ap2:>rove  of  the  particular  acts  of  such  agent,"  was 
held  to  be  an  abstraction  merely;  because  there  was 
no  evidence  of  any  general  agency,  including  author- 
ity to  compromise  claims,  —  which  was  the  point  in 
dispute,  —  nor  of  any  acting  in  this  way  with  the 
knowledge  of  the  principal,  who,  on  the  contrary,  dis- 
avowed the  act  as  soon  as  he  heard  of  it.'^  And, 
again,  where  the  court  refused  the  following  instruc- 
tions, the  refusal  was  held  proper  on  the  same  gi^ound; 
namely:  "The  jury  are  instructed,  as  a  matter  of  law 
in  this  case,  that  a  principal  is  only  bound  by  such 
acts  of  his  agent  as  are  in  the  line  of  his  agency ;  and 
if  an  agent  does  things  outside  of  his  agency,  and  not 
within  its  legitimate  range,  then  his  principal  is  not 
bound  by  such  of  his  acts  as  are  thus  outside  of  his 
agency. 

"An  agent  should  act  fairly  by  his  principal;  and 
any  acts  of  fraud  on  his.  part,  known  to  the  person  or 
persons  who  seek  to  bind  the  principal,  cannot  bind 
the  principal  as  to  such  fraudulent  acts;"  —  w^hcreas, 
on  the  evidence,  there  were  no  acts  outside  of  the 
scope  of  the  agency,  nor  any  acts  of  fraud.^"    And 

14  McKnight  v.  Eatcliffe,  44  ^^  Holden  v.  Hulburd,  61  Til. 
Pa.  St.  164.  282. 

1^  Dwyer  v.  Dunbar,  5  Wall. 
319. 


CiiAP.  IX.]         rN^STP.UCTIONS   ABSTRACT,  ETC.      .  385 

where  the  instruction  was  given  that,  "  If  the  jury  be- 
lieve, from  the  evidence,  that  A  was  the  general  agent 
of  B,  then  no  private  instruction  given  by  B  to  A  can 
affect  C;"  while  there  was  no  evidence  that  A  was 
general  agent  of  B,  but  only  a  bailee  of  a  promissory 
note  for  safe-keeping,  without  any  authority  to  re- 
ceive payment.  ^^ 

And  where  trustees  were  authorized  to  build  a 
school-house  for  a  specified  amount,  without  a  suffi- 
cient fund  for  that  purpose  having  been  provided  by 
the  district,  instructions  to  the  effect  that,  if  the 
trustees,  without  authority,  went  beyond  the  funds 
actually  provided,  the  resulting  indebtedness  was  not 
binding  on  the  district,  were  held  abstract,  and  were 
refused.  This  being  assigned  as  error,  the  ruling  of 
the  court  below  was  sustained  thereon. ^^ 

§  446.  Where  the  president  of  a  bank  acted  also 
in  the  private  capacity  of  a  pork  dealer,  and  it  was 
claimed  that  a  debt  due  the  bank  had  been  paid  to 
him  in  hogs,  as  the  agent  of  the  bank,  and  instructions 
were  given  (1)  That  payment  may  be  made  in  any 
thing  or  article  which  the  party  to  whom  the  claim  or 
debt  is  due  is  willing  to  receive  in  payment;  (2)  That 
payment  may  be  made  to  an  agent  as  well  as  to  the  prin- 
cipal debtor,  when  the  authority  of  the  agent  goes  to 
the  extent  of  collecting  and  receiving  the  payment,  — 
the  Supreme  Court  say,  "  We  need  not  decide  whether 
a  bank  can  receive  hogs,  or  anything  but  money,  in 
payment  of  bills  held  by  it  in  the  course  of  its  bus- 
iness.     There  was  no   shadow   of  evidence '  tending 

^'  Burns  v.  Kelley,  41   Miss.  ^^  Sanborn  v.  School  District, 

342.  12  Minn.  37. 

25 


386  IN^STRUCTIONS    AND    OHABGES.  [Part  II. 

to  show  that  anything  but  money  had  been  paid.  The 
hog  transaction,  it  was  not  questioned  by  the  evidence, 
was  with  Alexander  in  his  private  capacity  as  a  pork 
dealer,  and  not  as  president  of  the  bank;  and  there 
was,  therefore,  nothing  in  the  case  to  call  for  an  in- 
struction that  payment  could  be  made  in  any  article 
which  the  creditor  was  willing  to  receive  as  payment; 
and  it  could  only  tend  to  lead  the  jury  to  confound 
the  private  hog  transaction  between  the  defendant 
and  Alexander  with  the  transactions  between  the  de- 
fendant and  the  bank  through  Alexander  acting  as 
its  president.  Instructions  should  be  pertinent  to  the 
case.  Juries  are  apt  to  assume,  and  are  justified  in 
assuming,  that  they  are  applicable.  This  could  only 
be  so  upon  the  ground  that  Alexander,  acting  as  a 
pork  dealer,  was  doing  business  for  the  bank;  and, 
unless  the  jury  utterly  disregarded  the  instruction,  it 
could  hardly  fail  to  mislead  them.  It  tended  to  induce 
them  to  confound  Alexander's  private  transactions 
with  his  of&cial  acts,  when  the  case  demanded  that 
the  two  characters  should  be  carefully  distinguished 
and  kept  separate."  '^ 

§  447.  As  to  presumptions  of  payment,  the  follow- 
ing instruction  was  given,  and  held  error:  — 

"  If  the  jury  believe,  from  the  evidence,  that  there 
was  a  payment  made  on  the  note  sued  on,  on  the 
twenty-sixth  day  of  January,  1859,  and  that  there  is 
no  evidence  to  show  by  which  particular  obligor  the 
payment  was  made,  you  may,  as  a  matter  of  law,  pre- 
sume it  was  made  by  the  parties  jointly  chargeable 


19 


Hays  V.  Hynds,  28  Ind.  636. 


Chap.  IX. ]  INSTPJJCTION'S    APtSTKACT,  ETC.  387 

with  the  payment;"  —  whereas  there  was  no  other 
evidence  of  payment  than  the  indorsements  on  the 
note;  which,  the  court  remarked  on  appeal,  "were 
utterly  worthless  to  j^rove  either  that  the  alleged  pay- 
ments were  made,  or  by  whom  made,  or  when  made," 
—  there  being  a  plea  of  the  statute  of  limitations. 
And  the  court  further  quote  from  McGehee  v.  Greer 
(7  Porter,  537)  :  "A  payment  on  a  note  is,  we  think, 
precisely  equivalent  to  an  admission  that  at  the  time 
of  the  payment  the  debt  is  due ;  but  it  is  necessary 
that  the  party  relying  on  such  payment  should  prove 
the  date  of  the  payment.  To  permit  that  fact  to  be 
established  by  the  credit  entered  on  the  note  would 
be  manifestly  allowing  the  party  relying  on  it  to  make 
evidence  for  himself." ""  And  so  an  instruction  is  bad 
which  goes  on  the  idea  of  payment,  or  satisfaction,  or 
usury,  where  there  is  no  such  issue  raised  by  the 
pleadings.^^ 

§  448.  An  instruction  is  improper,  based  on  ex- 
cluded, instead  of  admitted,  testimony.^-  So,  where 
an  execution  and  certain  process  were  excluded,  and 
several  instructions  were  given  in  relation  to  the  va- 
lidity of  the  execution,  and  refused  as  to  the  validity 
of  the  process,  the  instructions  were  declared  by  the 
Supreme  Court  to  be  out  of  place,  having  nothing  to 
i*est  on.'^  Or  where  a  correct  instruction  in  point  of 
law  is  calculated  to  induce  a  jury  too  readily  to  adopt 
the  conclusions  of  facts  supposed,  without  considering 

2"  Knight,  Adm'r,  v.  Clements,         ^  Pleasants  v.  Scott,  21  Ark. 

45  Ala.  100.  375. 

21  Camp  V.  Ilee^an,  43   Mo.         ^3  Atkinson    v.    Gatcher,    23 

592  Ark.  106. 


388  IXSTRUCTIONS   AND    CHARGES.  [Part  II. 

sufficiently  whether  there  is  evidence  to  wari'ant  the 
adoption  of  all  those  conclusions,'* — or  founded  on  an 
issue  not  raised  by  the  pleadings,  it  is  error .~^  And 
so,  if  it  is  founded  on  a  passage  in  a  petition  stricken 
out,  although  the  party  offering  the  instruction  ex- 
cepts to  the  striking  out;'"  or  relates  merely  to  points 
made  in  argument  where  those  points  are  not  in 
issue ;  ^'  or  relates  to  hearsay  evidence  in  such  a  man- 
ner as  to  be  calculated  to  lead  the  jury  to  affix  the 
character  of  hearsay  to  the  evidence  given  by  wit- 
nesses as  to  what  was  said  by  the  parties,  at  the  time 
of  making  an  agreement,  as  to  the  character  and 
quality  of  the  subject  of  the  agreement;  as,  for  ex- 
ample, land ;  ''^  or  set  out  the  distinction  between  pos- 
itive and  negative  evidence  so  as  to  mislead  a  jury  to 
believe,  in  a  criminal  case,  that  the  evidence  of  those 
who  testified  that  the  prisoner  did  not  strike  the  blow 
is  to  be  regarded  as  negative  evidence,  in  the  legal 
sense,  and  thereby  to  giv^e  it  less  weight  than  it  is 
entitled  to.~^ 

§  449.  As  to  liabilities  of  railroad  companies  to  an 
employee,  for  injury  received  in  removing  a  car  in 
want  of  repairs,  the  following  instructions  were  re- 
fused, and  the  refusal  sustained:  (1)  If  the  plaintiff 
received  the  injuries  complained  of  through  the  negli- 
gence or  improper  conduct  of  a  fellow-servant  in  the 
employ  of  the  defendant,  the  plaintiff  is  not  entitled 
to  recover.     (2)  A  servant  who   sustains   an  injury 

24  Austin  V.  Lalk,  26  Tex.  130.          27  pjatt  v.  People,  29  111.  12. 

25  Ray  V.  Sellers,  1  Duv.  28  gji^pg  y  gacr,  8  Clarke 
(Ky.)  256.                                            (Iowa)  369. 

2*5  Gilbert  i;.  Hosier,  11  Iowa,  29  Coughlin  r.  People,  18  111. 
499.  268. 


^Chap.  IX.]    INSTRUCTIONS  ABSTKACT,  ETC.        389 

from  the  negligence  of  a,  superior  agent  engaged  in 
the  same  general  business,  can  maintain  no  action 
against  their  common  employer,  although  he  was  sub- 
ject to  the  control  of  such  superior  agent,  and  could 
not  guard  against  his  negligence  or  its  consequences. 
(3)  A  servant  cannot  recover  from  his  employer  for 
an  injury  resulting  from  an  order  given  by  an  agent 
or  fellow-servant  who  had  no  authorit}^  to  give  it ;  "  — 
the  oiily  issues  which  were  formed  being,  (1)  Whether 
or  not  the  plaintiff,  when  he  attempted  to  move  the 
car,  was  ignorant  of  the  unsafe  condition  of  the  ma- 
chinery; and,  (2)  What  damage,  if  any,  he  suffered 
from  the  injury  complained  of.  The  court  remarked, 
"  H^o  issue  was  made  or  tendered  which  involved  an 
inquiry  whether  the  plaintiff  received  the  injuries  com- 
plained of  through  the  negligence  or  improper  con- 
duct of  a  fellow-servant  or  superior  agent  in  the 
employment  of  the  defendant.  If  the  defendant  had 
desired  to  set  up  as  a  defence  that  the  order  to  move 
the  car  was  not  given  by  the  defendant,  but  by  the 
foreman  of  its  blacksmith  shop,  it  should  have  made 
the  proper  averments  to  that  effect  in  the  answer,  that 
an  issue  might  be  framed  on  that  point.  !No  such 
issue  being  made  or  tendered,  the  instructions  which 
were  refused  were  irrelevant."  ^" 

Where  an  injury  occurred  by  a  collision  on  a  rail- 
road, a  number  of  abstractions  are  thus  summarized 
by  the  court :  "  They  asked  the  court  to  instruct  the 
jury  that,  if  the  injury  was  occasioned  by  the  negli- 
gence of  the   Galena  and  Chicago  Union  Railroad 

30  Conlin  v.  R.  R.  36  Cal.  411. 


390  INSTKUCTIONS   AND   CILAHGES.  [Part  II. 

Company,  they  would  find  for  the  defendants.  This 
the  court  properly  refused,  as  there  was  no  evidence 
to  base  it  upon.  That  company  was  running  its  train 
on  time.  The  train  was  at  the  proper  place  on  the 
road,  and  was  in  no  fault.  They  asked  the  court  to 
instruct  that,  if  they  believed,  from  the  evidence,  that 
both  parties  were  guilty  of  negligence  or  want  of 
care,  they  should  find  for  the  defendants.  The  com't 
properly  refused  this  instruction,  as  there  was  no  evi- 
dence of  negligence  or  want  of  care  on  the  part  of 
the  plaintiff.  They  asked  the  court  to  instruct  the 
jmy  that,  unless  they  believed,  from  the  evidence, 
that  defendants'  train  was  not  entitled  to  the  road 
when  the  collision  occurred,  they  should  find  for  the 
defendants.  The  court  properly  refused  this  instruc- 
tion, as  there  was  no  evidence  tending  to  show  that 
they  were  entitled  to  the  road;  but  all  the  evidence 
showed  that  they  were  not  entitled  to  it  Vv  hen  the  col- 
lision occurred.  They  also  asked  the  court  to  instruct 
the  jury  that,  if  they  believed,  from  the  evidence,  that 
the  Galena  and  Chicago  Union  Railroad  Company 
had  the  sole  control  and  regulation  of  the  time  and 
manner  of  running  all  trains  on  the  road  where  the 
accident  occurred,  and  that  defendants'  train  at  that 
time  was  run  according  to  such  rules  and  regulations, 
and  that  it  occurred  by,  or  was  the  result  of,  following 
such  rules,  then  the  Galena  and  Chicago  Union  Kail- 
road  Company  are  liable,  and  they  should  find  for 
defendants.  This  instruction  was  also  properly  re- 
fused. It  assumed  that  the  defendants  were  running 
on  time  when  the  collision  occurred,  when  the  evi- 
dence shows  they  were  not;  and  there  was  not  a  par- 


CuAP.  IX.]  rtTSTKUCTIONS   ABSTRACT,  ETC.  391 

tide  of  evidence  tending  to  show  they  were  running 
in  conformity  to  the  regulations  of  the  road.  To 
'  have  given  any  of  these  instructions  would  have  tend- 
ed to  mislead  the  jury,  and  bring  before  them  mere 
abstract  propositions."  ^' 

§  450.  Parties  are  not  allowed  to  hypothecate  a 
case  not  sustained  by  evidence,  and  call  upon  the 
court  to  give  an  opinion  upon  the  legal  effect  of  such 
supposed  state  of  facts. "^^  And  where  a  position  is 
true  in  some  degree  and  for  some  purposes,  yet  if 
given  unqualifiedly,  as  requested,  it  is  not  true,  and 
is  calculated,  if  so  stated,  to  mislead  the  jury,  an  in- 
struction thereon  should  be  refused;  as,  for  example, 
where  a  request  is  to  charge  that  "  the  contract  be- 
tween A  and  B,  taken  in  connection  with  the  other 
evidence  in  the  case,  made  them  partners,"  it  ought 
to  be  rejected,  unless  the  contract  and  the  evidence 
make  them  general  partners,  or  else  qualified  to  make 
the  partnership  specially  relate  to  the  matter  in  con- 
troversy ."^^  And  where  an  instruction  is  partly  ab- 
stract and  partly  applicable,  a  court  is  not  bound  to 
dissect  it  and  give  the  portion  which  is  appropriate, 
but  may  reject  the  whole. '^^  Or  it  is  a  proper  ground 
for  refusal,  that  it  may  be  correct  in  one  sense,  but 
erroneous  in  another.  Thus,  where  suit  was  brought 
for  the  value  of  a  mare  killed  in  the  night  on  a  rail- 
road track,  and  an  instruction  was  that "  the  mere  fact 
of  the  mare  being  killed  on  the  track  is  evidence  of 

SIR.    R.  V.  George,    19    111.  33  ^thertont;.  Lilton,44  N.  H. 

518.  456. 

32  Whitney  •'   Goin,  20  N.  H.  ^4  Rathbone    v.    Ins.    Co.    31 

35'7.  Conn.  205. 


392  IXSTEUCTIONS   AXD   CHARGES.  [Pakt  II. 

negligence  on  the  part  of  the  company,"  the  court 
say,  "If  by  this  instruction  was  merely  meant  that 
the  fact  of  the  mare  being  killed  on  the  track  was  a 
circumstance  which  the  jury  had  a  right  to  take  mto 
consideration,  in  determining  the  question  whether 
the  fences  and  cattle-guards  were  good  and  sufficient, 
it  would  be  unobjectionable.  But  the  jury  could  not 
well  have  understood  it  in  that  qualified  sense.  They 
would  doubtless  consider  it  as  meaning  that  if  the 
mare  was  killed  on  the  track,  that  fact  of  itself  wou]  d 
prove  negligence  on  the  part  of  the  company.  .  .  .  In- 
structions should  be  framed  with  reference  to  the  cir- 
cumstances of  the  case  on  trial,  and  not  expressed  in 
abstract  and  general  terms,  when  such  terms  may 
mislead,  instead  of  enlightening,  a  jury."  ^ 

§  451.  A  charge  as  to  adverse  possession  is  out  of 
place  where  a  claim  is  not  contradicted  in  the  evi- 
dence nor  the  possession.^" 

§  452.  There  is  a  singular  illustration  of  the  inju- 
rious results  of  an  instruction  framed  without  a  just 
basis  of  the  evidence,  in  a  case  of  assault  and  battery, 
where  the  theory  of  the  instruction  was,  that  first  the 
defendant  assaulted  the  plaintiflP,  and  the  first  encoun- 
ter being  ended,  a  new  and  independent  assault  —  of 
which  there  was  no  evidence  —  was  made  by  the 
plaintiff  upon  the  defendant.  The  injuries  sustained 
were  shown  to  be  unprovoked,  and  most  brutal  —  the 
defendant,  having  thrown  plaintiff  on  the  floor,  con- 
tinued to  strike  him,  breaking  his  ankle,  and  the  small 
bone  of  the  leg,  which  confined  him  to  the  house  four 

35  R.  R.  V.  Utley,  28  I?l.  412.       378 ;  Knox  v.  Easton,  38  Ala. 

36  Bower  v.    Earl,    18    Mich.      356. 


Chaf.  IX.]  rN^STKUCTIONS   ABSTRACT,  ETC.  393 

or  five  weeks,  obliged  him  to  use  crutches  for  several 
months,  during  which  he  was  unable  to  work,  and  left 
him  with  a  stiff  and  enlarged  ankle  for  life.  The  ver- 
dict was  twenty-five  dollars,  on  which  the  Supreme 
Court  remarked,  "  Such  verdicts  are  a  disgrace  to  the 
administration  of  justice.  The  jury  that  found  this 
one  must  have  thought  that  to  wantonly  assault  and 
brutally  beat  a  man  is  little  more  than  an  innocent 
pastime.  We  trust  that,  upon  another  trial,  the  case 
will  be  passed  upon  by  a  jury  that  has  a  juster  appre- 
ciation of  its  duties."  "^^ 

§  453.  The  following  instruction  (refused)  on  the 
matter  of  fraud  was  held  not  to  be  correctly  stated, 
as  a  rule  of  law;  but  even  so,  it  was  at  best  a  mere 
legal  abstraction.  "  That  every  grant  or  conveyance 
of  goods  and  chattels  by  writing,  or  otherwise,  had  or 
made,  or  continued  to  the  intent  or  purpose  to  delay 
or  pre^'3nt  creditors  from  reaching  the  goods  and 
chattels  in  satisfaction  of  their  lawful  debts,  is  abso- 
lutely void."  It  was  held  incorrect  in  two  particulars, 
considered  as  a  statement  of  law,  namely:  (1)  The 
statute  uses  the  word  "  contrived,"  not  continued  [a 
clerical  error  in  the  instruction,  probably] ,  and  uses, 
in  connection  therewith,  the  words  "  of  malice,  fraud, 
covin,  collusion,  or  guile,  to  the  intent  or  purpose  to 
delay,  hinder,  or  defraud  creditors  of  their  just  and 
lawful  actions,"  &c.  (2)  Both  parties  must  have  the 
intent  to  delay,  &c.  But  even  if  these  had  been  rec- 
tified, the  instruction  would  still  have  been  objection- 
able as  abstract.'^^ 

^"  Gibson  v.  Webster,  44  111.  ^  Hessing  v.  McCloskey,  3t 

484.  111.  352. 


394  INSTRUCTIONS   AND   CHARGES.  [Pakt  II. 

And  so  an  instruction  is  abstract,  which,  when  a 
breach  of  wari-Unty  is  in  issue  on  an  alleged  internal 
and  secret  unsoundness,  charges  in  regard  to  a  "  plain 
and  perceptible  "  disease.''^ 

And  the  following  (given)  as  to  false  and  fraudu- 
lent misrepresentations,  when  there  was  no  evidence 
tending  to  show  any  such  representations  in  connec- 
tion with  the  sale  or  afterwards :  "  If  after  the  de- 
fendant purchased  the  machine  of  A,  the  payee  in- 
duced the  defendant  to  give  this  note  by  false  and 
fraudulent  representations  with  regard  to  the  machine 
[a  threshing  machine],  or  as  to  its  qualities,  this 
would  entitle  the  defendant  to  a  verdict."  *° 

And  so  where  the  court  was  asked  to  charge  thac 
"  uncommon  stipulations  or  clauses  in  a  bill  of  sale 
are  badges  of  fraud,"  and  that "  uncommon  or  unusual 
circumstances  or  conduct  in  the  mode  or  manner  of 
the  sale  or  transfer  are  badges  of  fraud,"  and  there 
was  no  evidence  of  any  such  circumstances,  the  refu- 
sal was  held  no  error .*^ 

And  so  an  instruction  in  replevin,  charging  concern- 
ing wrongful  detention,  when  this  was  not  brought 
into  issue  by  the  pleadings,  was  held  to  have  been 
properly  refused,  notwithstandmg  wrongful  detention 
was  the  gist  of  the  action.^^ 

§  454.  In  a  case  of  manslaughter,  four  different 
instructions  were  requested,  which,  in  a  variety  of 
ways,  charged  that  if  there  was  a  struggle  between 
the  accused  and  the  deceased  for  possession  of  the 

39 Herndon  v.  Bryant,  39  Miss.  ^^  Derby  r.  Gallup,  5  Min.  1.39. 

337.  ^  Draper   v.   Ellis,   12    Iowa. 

40  Moffitv.  Cressler,  SClarke  318. 
(Iowa)  124 


Chap.  IX.]         IXSTRUCTIOXS   ABSTRACT,  ETC.  395 

gun,  and  it  was  discharged  in  consequence  of  the 
struggle,  the  jury  should  acquit.  The  refusal  was 
assigned  for  error,  but  sustained  in  the  appellant  court 
because  there  was  no  evidence  of  any  such  struggle, 
although  there  was  some  evidence  that  the  deceased 
had  hold  of  the  gun  when  it  was  discharged.*^  And  in 
a  similar  case,  three  instructions  were  offered  and  re- 
fused, which  related  to  the  law  of  self-defence,  where- 
as thei'e  was  no  evidence  whatever  that  the  killing 
was  done  in  self-defence.** 

§  4:55.  Where  a  tenancy  expired  and  was  renewed 
in  a  definite  agreement  for  an  extension  for  one  year, 
and  afterwards,  in  an  action  of  forcible  detainer,  in- 
structions were  offered  relating  to  a  tenancy  from 
year  to  year,  these  were  held  properly  rejected,  be- 
cause there  was  no  such  tenancy  in  controversy.*^ 

§  4:56.  A  plaintiff  sued  for  damages  in  levying  on 
fruit  trees  shipped  by  him  to  A,  and  landed,  at  A's 
order,  on  a  certain  wharf,  and  claimed  that  the  trees 
were  not  paid  for,  and  not  subject  to  A's  debts  for 
want  of  delivery,  and  asked  two  instructions.  (1)  That 
a  man  who  is  insolvent,  for  the  want  of  means  to  pay 
his  debts,  is  in  law  insolvent  without  reference  to  any 
property  in  another  state.  (2)  That  a  delivery  at  the 
wharf  is  not  sufficient,  unless  notice  be  previously 
given  to  the  vendee  of  their  arrival;  and  that  sufficient 
time  be  allowed  to  enable  him  to  receive  and  remove 
them.  Both,  on  refusal,  were  held  by  the  appellate 
court  to  be  not  strictly  correct,  and  moreover  abstract; 

43  Murphy  v.  People,  37  111.  ^^  gecor  v.  Pestana,  37  111. 
458.  630. 

^  State  V.  Rose,  32  Mo.  356. 


396  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

the  first  because  there  was  no  proof  of  the  insolven- 
cy of  A,  and  the  second  because  no  basis  of  evidence 
was  laid  for  the  doctrine  of  stoppage  in  transitu.^" 

§  457.  The  following  instruction  (refused)  was 
held  aljstract  where  there  was  no  evidence  of  a  want 
of  consideration.  "  That  a  promise  by  A  to  pay  B  in 
this  suit  his  demand  against  C  without  some  valuable 
consideration  for  such  promise,  would  in  law  be  void, 
and  cannot  be  enforced  in  a  court  of  justice." ^^ 

And  so,  an  instruction  which  assumed  a  suretyship 
from  mere  spoken  words,  where  the  law  required  a 
suretyship  to  be  expressed  in  writing.^^ 

And  so,  concerning  a  set-off,  on  which  no  question 
of  law  had  been  raised.^^ 

And  so,  concerning  a  contract  in  regard  to  interests 
in  lands,  evidenced  in  Avriting,  where  there  was  no 
dispute  as  to  a  verbal  contract.^" 

And  so,  concerning  evidence  of  handwriting  by 
comparison,  when  the  testimony  was  that  of  experts, 
based  on  a  knowledge  of  the  handwriting  of  the  de- 
fendant." 

§  458.  Where  a  plaintiff  was  employed  to  make  a 
number  of  carts,  which  was  done,  and  the  carts  put 
under  a  shed,  and  consumed  by  fire  breaking  out, 
and  in  a  suit  for  the  price  of  the  carts,  this  instruc- 
tion was  given:  "If  the  jury  believe,  from  the  evi- 
dence, that  the  work  was  to  be  done  by  a  specified 

^  Thompson  v.  Paige,  16  Cal.  ^9  Qcheltree  v.  Carl,  23  Iowa, 

79.  396. 

47  McCown  V.  Schrimfp,  p  21  ^^  Huffman  v.  Ackley,  34  Mo. 

Tex.  25.  279. 

4^  Lombard  z;.  Martin,  39  Miss.  ^^  McGregor    v.     Armill,    2 

151.  Clarke  (Iowa)  34. 


CiiAi-.  IX.]  ES'STKUCTIONS    ABSTRACT,  ETC.  397 

time,  and  that  the  work  was  done  at  the  time  speci- 
fied, and  ready  for  delivery,  and  the  defendant  had 
notice  that  the  work  was  ready  for  dehvery,  then  it 
was  not  necessary  for  the  plaintiff  to  offer  to  deliver 
the  work  to  defendant  before  his  right  of  action  ac- 
crned,"  whereas  there  was  no  evidence  of  notice,  the 
instruction  was  held  improperly  given.  And  in  the 
same  case  was  an  instruction  offered  for  the  defendant 
and  refused,  that  if  the  jury  believed,  from  the  evi- 
dence, that  the  defendant  tendered  to  the  plaintiff, 
&:c.,  whereas  there  was  no  plea  of  tender,  and  tender 
could  not  be  proved  under  the  general  issue,  because 
repugnant  thereto,  the  general  issue  denying  liability, 
and  the  tender  admitting  it.^^ 

§  459.  An  instruction  concerning  the  general  cus- 
tom of  merchants  upon  the  Mississippi  and  its  trib- 
utaries, when  the  evidence  before  the  jury  was  as  to 
the  custom  of  merchants  of  three  only  of  the  impor- 
tant commercial  cities  within  the  designated  district 
of  country,  was  held  erroneous. ^^  And  so,  in  a  cer- 
tain case,  the  following  instructions  were  held  prop- 
erly refused,  namely :  — 

"  If  it  appears,  from  the  testimony,  that  the  plain- 
tiff was  not  a  manufacturer  of  the  goods  in  contro- 
versy, but  a  jobber  or  dealer,  and  if  you  find,  from 
the  testimony,  that  A,  himself  a  jobber,  was  aware 
of  the  plaintiff's  character  and  situation  as  a  mere 
dealer,  then,  in  determining  the  question  of  the  mer- 
chantable character  of  the  goods,  in  the  absence  of 
any  express  agreement,  you  will  consider  this  term, 

52  Mclntyre  i;.  Kline,  30  Miss.  ^3  vyalsh  v.  Frank,  19  Ark. 
36t.  271. 


398  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

'merchantable,'    as   known,  applied,  and  imderstood 
between  dealers  or  jobbers  in  glass. 

"Merchantable  glass  means  that  the  glass,  in  its 
condition  and  appearance,  conforms  generally  to  what 
would  be  understood  by  the  trade,  or  by  glass  mer- 
chants, as  merchantable  glass. 

"  If  you  find  it  to  be  the  rule  among  dealers,  that 
glass  put  up  in  good  boxes,  and  which  does  not  rattle 
when  handled  or  shaken,  is  regarded  as  merchantable 
glass,  and  it  is  fairly  shown  by  the  testimony  that  the 
glass  was  in  that  condition  at  the  time  it  was  shipped 
by  the  ])laintiff  on  board  the  steamer  at  Pittsburg, 
then  defendants  are  not  entitled  to  any  allowance  on 
account  of  the  unmerchantable  character  of  the  glass 
when  it  reached  Burlington,  if  the  shipment  was 
made  according  to  order."  These  being  based  upon 
the  supposition  that  evidence  was  introduced  tending 
to  show  what  was  understood  in  the  trade  by  the 
terms  "  merchantable,"  "  well-packed,"  and  "  in  good 
order,"  and  there  being  only  the  individual  opinions 
of  the  plaintiff  and  two  other  witnesses,  as  to  this 
point,  the  instructions  were  held  inapplicable  to  the 
evidence.^* 

Where  an  instruction  was  requested  and  refused,  that 
the  plaintiff  could  not  recover  for  loss  of  good  will, 
it  was  held  that  the  refusal  was  correct,  inasmuch  as 
the  plaintiff  did  not  ask  damages  for  the  loss  of  good 
will.'^^ 

§  460.  Where  the  keeper  of  a  public  ferry  was 
sued  for  injury  to  animals,  by  his  negligence  in  trans- 

^  King  V.  Nelson,  36  Iowa,  ^^  Weber  v.  Kingsland,  8 
512.  BoRw.  440. 


Chap.  IX]  INSTRUCTIOXS   ABSTRACT,  ETC.  399 

porting  them,  as  a  public  carrier,  it  was  held  fhat  the 
court  erred  fatally  in  giving  instructions  wherein  the 
liability  of  the  defendant  was  made  to  rest  on  the 
assumption  of  a  special  contract  for  conveying  the 
animals,  by  which  means  a  new  rule  of  negligence, 
and  damages  thereon,  was  introduced;^'' 

§  4G1.  In  a  case  of  burglary,  these  uistructions 
were  asked,  and  held  properly  refused:  "That  the 
entry  of  an  instrument  used  only  in  making  a  breach 
into  a  house  is  not  such  an  entry  as  will  constitute 
burglary."  "That  the  entry  through  the  roof  with 
the  feet  is  not  a  sufficient  entry  to  constitute  burglary 
when  the  foot  is  only  used  to  make  a  breach,"  since 
there  was  no  evidence  that  the  prisoner  made  an 
entry  with  an  instrument  used  only  in  making  a 
breach  into  the  house,  or  with  his  feet  in  like  manner, 
but  the  breaking  and  entering  alleged  were  effected 
by  going  down  the  chimney .^^ 

§  462.  Wliere  a  court  was  asked  to  instnict  the 
jury  that  if  the  defendant  was  obliged  to  pay  the 
instalment  sued  for,  he  would  not  lose  the  amount,  as 
he  could  recover  it  from  a  third  party  by  another  suit, 
it  was  held  properly  refused,  as  being  entirely  outside 
the  issue  the  juiy  were  to  try,  namely,  the  promise  of 
the  defendant  to  pay  the  instalment.^^ 

§  4G3.  Wliere  an  instruction  was  based  on  the  as- 
sumption of  carelessness  of  a  railroad  company  in 
employing  servants,  it  was  held  error  in  the  court  to 
have  given  it,  when  there  was  no  issue  to  which  it 

'"^  Hall  V.  Renfro,  3  Met.  ^^  Manuf.  Co.  v.  Bartram,  31 
(Ky.)  55.  Conn.  145. 

^'  Donohoo  V.  State,  36  Ala. 
283. 


400  IN^STRUCTIONS   AND    CIIAKGES.  [Part  II. 

could  be  applied,  neither  the  pleadings  nor  testimony 
containing  anything  whatever  concerning  carelessness 
in  the  employment  of  servants.^'' 

§  4G4.  But  the  court  will  not  regard  the  e\ddence 
as  much  or  little  in  the  giving  of  instructions.  If 
there  is  any  evidence,  though  slight,  to  support  them, 
they  should  not  generally  be  refused/'*'  And  where 
an  abstract  instruction  is  actually  given,  yet  if  it  be 
evidently  not  prejudicial,  but  hai-mless,  a  cause  will 
not  be  reversed  thereon,  according  to  the  general 
rule,  that  a  neutral  eri'or  does  not  vitiate/^ 

§  465.  An  instruction  is  erroneous  which  requires 
a  jury  to  find  a  fact  not  in  issue ;  as,  for  example,  that 
a  note  sued  on  had  been  executed  by  defendant's  in- 
testate, whereas  the  execution  of  the  note  was  not 
denied;  the  instruction  being  likely  to  lead  the  jury 
to  believe  that  the  plaintiff  had  not  established  his 
cause  of  action,  having  offered  no  proof  of  the  ex- 
ecution of  the  note,  and  so  to  mislead  them  into  find- 
ing a  verdict  against  him  on  that  ground. 


62 


69  Deppe  V.  R.  E.  36  Iowa,  5T.  Adm'r,  38  Ala.  49  ;  McNeill  v. 

60  Ilofelman   v.  Valentine,  26  Arnold,  22  Ark.  481. 

Mo.  393.                 .  62  Orth  v.  Clutz,  Adm'r,   18 

61  Quint  V.  Silver  Mining  Co.  B.  Mon.  226. 
4  Nev.  308  ;  Eussell  v.  Erwiu's 


Chap.  X-l         INSTRUCTIONS   ASSUMING  FACTS.  401 

CHAPTER   X. 

Instructions  assuming  Facts. 

§  4GG.  "We  come  now  to  a  somewhat  correlative 
matter,  and  yet  distinctive,  which  has  been  thns  de- 
fined by  the  Supreme  Court  of  Maryland:  "The 
assumption  of  a  fact  by  the  court  is  materially  dif- 
ferent from  giving  instructions  to  the  jury  without 
any  evidence  to  snpport  them.  To  assume  a  fact  is 
to  state  as  pi-oved  that  which  is  to  be  proved;  as  Mf 
the  jury  find  that  after  the  sale '  assumes  the  fact  of 
the  sale,  and  is  therefore  erroneous.  But  to  instruct 
the  jury  upon  an  hypothesis  of  which  there  was  no 
evidence,  is  to  leave  them  to  assume  or  find  that  for 
which  there  was  no  foundation.  The  errors,  thougli 
closely  similar,  are  by  no  means  the  same.  The  one 
is  generally  incidental  and  casual,  the  other  is  funda- 
mental, deliberate,  and  conclusive,  and  has  always 
been  held  to  be  error,  for  which  the  judgment  would 
be  reversed."^  And  it  matters  not  how  plain  the  evi- 
dence may  be;  the  court  is  not  thereby  justified  in 
assuming  a  disjiuted  fact.  Thus,  in  an  action  for 
negligence  of  a  railroad  comi)any,  where  the  defence 
was  contributory  negligence  in  the  custodian  of  the 
injured  child,  instructions  were  asked,  on  which  the 
Sui)reme  Court  remarked,  "  To  give  the  instructions 
asked  would  have  been,  to  a  great  extent,  taking  the 
case  fi'om  the  jury,  by  assuming  the  existence  of  ma- 
1  Miiyor,  &c.,  V.  Trimble,  25  Md.  34. 

2G 


402  INSTKUCTIONS   A2n)    CIIAKGES.  [Part  II. 

terial  facts  in  the  case.  The  court  could  not  say  to 
the  jury  that  the  failure  of  the  girls  to  look  in  the 
direction  of  the  gravel  train,  when  approaching  or 
standing  upon  the  track,  was  carelessness  such  as 
should  prevent  a  recovery,  without  assuming  the  ex- 
istence of  material  facts  in  the  case,  which  it  was  for 
the  jury  to  find.  The  instructions  asked  assume  the 
agency  of  the  elder  sister,  and  assume  the  non-exist- 
ence of  any  facts  or  circumstances  rendering  it  pru- 
dent or  proper  for  her  to  omit  looking  out.  These 
were  matters  for  the  jury,  and  could  not  he  found  or 
assumed  hy  the  court,  no  matter  how  plainly  they 
might  have  been  proven."  ~ 

§  467.  The  rule,  however,  is  confined  to  disputed 
facts,  and  the  court  has  a  right  to  assume  facts  un- 
controverted ;  as,  for  example,  if  both  parties  assume 
that  certain  grading  has  been  done  by  competent 
authority,  that  the  work  was  charged  to  the  owners 
of  the  adjoining  lots,  and  that  the  defendant  owned 
the  lots,  there  is  no  error  in  the  treiitment  of  these 
matters  by  the  court  in  the  same  manner.^  And  so, 
where  an  instruction  was  objected  to  in  the  appellate 
court  because  it  assumed  the  insolvency  of  a  vendor, 
from  whom  the  defendant  derived  title,  at  the  time  of 
the  sale,  and  it  appeared  that  this  insolvency  was  not 
denied  in  the  court  below,  and  there  was  no  conflict 
of  evidence  on  the  subject,  it  was  held  no  error.* 

§  468.  Sometimes  the  fact  assumed  is  inferential ; 
and,  concerning  this,  the  Supreme  Court  of  l^orth 

2  R.  R.  u.  Snyder,  24  Ohio  *  Hughes  v.  Marty,  24  Iowa, 
St.  678.  501. 

^  Morse  v.  Oilman,   18  Wis. 
385. 


Chap.  X.]         rN^STRUCTIONS   ASSUMING   FACTS.  403 

Carolina  has  said,  "There  are  possibilities  different 
from  the  inference  intended  to  be  drawn,  which  sur- 
ronnd  every  evidentiary  fact  in  a  canse;  but  for  a 
judge  to  note  one  such  possibility,  and  specially  call 
it  to  the  attention  of  the  jury,  would  be  giving  it 
weight  to  which  it  is  not  entitled,  and  inviting  the 
jury  to  draAV  from  the  fields  of  conjecture  the  mate- 
rial for  making  up  a  verdict."^ 

§  4G9.  The  correctness  of  the  legal  principle  con- 
tained in  an  assuming  instruction  will  not  atone  for 
the  error.  The  mischiefs  resulting  from  using  a  cor- 
rect legal  proposition  as  a  cloak  for  an  attempt  to 
decide  facts  for  the  jur}^,  are  well  set  forth  in  an 
early  decision  of  the  Iowa  Supreme  Court:  "Assum- 
ing the  facts  in  the  case  to  have  been  fully  proved,  as 
claimed  by  defendant's  counsel,  these  instructions  con- 
tained no  erroneous  pro])osition  of  law.  Abstractly 
considered,  they  would  be  correct;  but  when  consid- 
ered in  connection  with  the  facts  in  the  case,  they 
were  calculated  to  exei't  too  strong  an  influence 
against  the  plaintiff.  They  assumed  facts  to  have 
been  proved  which  were  in  dispute,  and  to  be  decided 
by  the  jury.  They  take  for  granted,  or  assume  to 
decide,  facts  which  were  neither  admitted  by  the 
pleadings  nor  proved  by  the  evidence.  They  take 
for  granted  that  the  purchase  was  imconditional, 
upon  adequate  consideration,  and  without  notice  of 
fraud.  Such  instructions  are  calculated  to  mislead 
the  jury,  and,  although  they  state  the  law  correctly, 
thc}'^  charge  too  strongly  upon  the  facts.  So  far  as 
facts  are  concerned,  the  jury  should  be  left  free  from 

'^  State  V.  Clara  (a  Blave),  8  Jones  L.  21. 


404  INSTRUCTION'S   AND   CIIAEGES.  [Pai:t  II. 

any  influence  by  the  court.  These  instructions  appear 
to  have  been  worded  with  a  particular  reference  to 
the  influence  they  would  be  likely  to  have  upon  the 
jury  in  deciding  the  facts.  ]N^othing  would  be  more 
likely  to  exert  an  undue  influence  on  a  jury  than 
the  positive  and  decisive  language  contained  in  the 
instructions  in  reference  to  the  facts.  Before  the 
instructions  were  asked,  the  court  had  charged  the 
jury  fully  and  correctly  upon  the  law  of  the  case,  and 
left  the  facts  with  them,  where  they  legitimately  be- 
longed. But  defendant's  counsel  very  adroitly  man- 
aged to  decide  these  facts  for  the  jury,  in  the  in- 
structions, so  gilded  and  embellished  with  a  correct 
statement  of  the  law  as  to  obstruct  the  disci'imination 
of  the  court,  and  especially  calculated  to  mislead  the 
jury.  Great  care  and  discrimination  should  be  exer- 
cised by  nisi  prius  courts,  in  submitting  such  instruc- 
tions as  are  requested  by  counsel,  for,  when  approved 
and  repeated  by  the  judge,  the  jury  take  it  for  granted 
that  the  facts,  as  well  as  the  law  of  the  case,  are  to  be 
decided  accordingly.  Most  jurors  are  glad  to  escape 
the  trouble  of  an  investigation,  and  the  perplexity  of 
deciding,  and  are  more  than  inclined  to  adopt  any 
judicial  decision  or  intimation  that  may  be  submitted 
to  them.  Hence  great  caution  should  be  exercised, 
and  jurors  should  often  be  admonished  by  the  courts 
that  they  alone  are  to  investigate  and  decide  the  facts 
in  the  case  submitted  to  them." " 

§  470.  This  instruction  was  offered  and  refused  in 
an  action  for  non-delivery  of  oil,  which  was  lost  by  a 
rise  of  a  stream.    "  The  plaintiff,  having  neglected  to 

^  Luman  v.  Kerr,  4  Greene  (Iowa)  160. 


Chap.  X.]        INSTEUCTIONS   ASSUIMIN^G   FACTS.  405 

• 

come  for  the  barrels,  and  pay  for  them,  at  the  time  of 
the  first  or  second  rise  in  French  Creek,  cannot  re- 
cover damages  for  the  non-dehvery  of  the  barrels ; " 
and  the  refusal  was  sustained,  because  negligence  on 
the  part  of  the  plaintiff  was  assumed  therein,  although 
controverted/ 

§  4:71.  And  another  form  of  assumption  is  where 
this  language  is  employed  in  setting  out:  "Wlien  the 
defendant  has  shown,  or  shows,"  &c.  The  Supreme 
Court  of  Alabama  say  of  this,  "  Such  language,  when 
used  in  reference  to  conflicting  testimony  before  a 
jury,  is  always  improj^er.  The  court  cannot  predicate 
or  assume  that  any  fact  embraced  in  the  issue  has 
been  shown  or  proven.  The  jury,  under  our  system, 
is  the  only  tribunal  which  passes  on  controverted 
facts  in  courts  of  law,  and,  until  the  verdict  is  ren- 
dered, no  such  fact  is  established  or  shown  to  exist."  ^ 

And  so  a  charge  which  instructs  the  jury  that 
they  may  infer  a  prisoner's  guilt  from  certain  facts 
hypothetically  stated,  "  and  other  circumstances,"  is 
erroneous  in  assuming  the  existence  of  other  cir- 
cumstances in  the  case,  instead  of  leaving  the  jury  to 
decide  upon  the  credibility  of  the  evidence  tending 
to  prove  them.'' 

§  472.  In  an  action  for  breach  of  promise  of  mar- 
riage, the  court  gave  this  instruction :  "  It  was  not 
necessary  that  the  plaintiff  should  prove  an  express 
promise  on  her  part  to  marry  the  defendant,  but  it 
may  be  inferred,  from  the  fact  of  her  making  no  ob- 

'  Cullum  V.  Wagstaff,  48  Pa.  ^  Thompson  v.  State,  30  Ala. 
St.  302.  28. 

^  Greshara  v   Tucker,  28  Ala. 
611. 


406  INSTIIUCTIONS   AND    CIIAIIGES.  [Part  II. 

jection  at  the  time,  carrying  herself  as  one  consenting 
and  approving,  receiving  his  visits  as  a  suitor,  writing 
letters  to  him,  and  such  like  circumstances  indicating 
her  assent.  Ilcr  readiness  and  willingness  to  perform 
may  be  proved  by  her  conduct  and  expressions,  and 
preparations  for  the  marriage."  It  was  held  objec- 
tionable, as  the  jury  might  have  nnderstood  it  as 
assuming  the  facts  recapitulated  in  it.'*' 

§  473.  Where  an  instruction  ran  thus,  —  "  If  the 
jury  believe,  from  the  evidence,  that  the  writing  ob- 
ligatory in  the  second  count  of  the  plaintiff's  declara- 
tion mentioned  was  held  by  the  plaintiff  at  the  time 
the  letter  was  written  by  the  defendant,  requesting 
the  plaintiff  to  credit  the  amount  of  a  board  bill  owing 
from  the  plaintiff  to  him  on  any  of  the  claims  the 
plaintiff  held  against  him,"  &c.,  —  it  was  held  eri-one- 
ous  in  assuming  that  the  letters  were  written  by  the 
defendant  to  the  plaintiff,  and  that  they  related  to  the 
matters  in  controversy,  of  which  the  only  evidence 
was  the  contents  of  the  letters  themselves,  which,  on 
their  face,  were  addressed  to  no  one,  although  no 
suspicion  attached  to  the  plaintiff's  possession  of 
them,  and  which,  in  their  subject-mattei",  did  not 
explicitly  and  necessarily  relate  to  the  disputed  mat- 
ters; and  that  the  request  to  credit  the  board  upon 
some  of  the  claims  was  equivalent  to  the  request  to 
enter  it  upon  any  one  of  them,  taking  away  the  ques- 
tion concerning  the  appropriation,  whether  b}^  plain- 
tiff or  defendant,  from  the  consideration  of  the  jur}^'^ 

§  474.  And  so,  in  an  action  of  trespass,  an  instruc- 

^^  Conaway  i).  Shelton,  3  Ind.  ^^  Armistead    v.   Brooke,     18 

335.  Ark.  625. 


CiiAP.  X]         IXSTRUCTIOXS   ASSUIVIEN^G  FACTS.  407 

tion  was  held  erroneous,  that  the  plaintiff  was  "  enti- 
tled to  recover  all  damages  proved  to  have  been  sus- 
tained by  him  on  account  of  the  trespasses  committed 
by  the  defendant  on  the  plaintiff's  premises,  as  alleged 
in  the  declaration,"  because  it  assumed  that  the  de- 
fendant committed  the  trespasses,  and  that  the  only 
question  before  the  jury  was  the  amount  of  damages/" 

§  475.  And  an  instruction  requested  in  a  suit  on  a 
railroad  subscription,  that  "unless  the  jury  shall  find 
that  the  subscription  to  recover  which  this  suit  was 
brought  was  an  individual  undertaking  of  one  of  the 
partners,"  &c.,  was  held  erroneous  in  assuming  the 
fact  of  the  subscription,  instead  of  leaving  it  to  the 
jury.'' 

§  476.  Where  a  dower  in  a  dwelling-house  was  set 
out  thus, — "The  west  room,  and  bed-room  adjoining, 
on  the  lower  floor,  the  north-east  chamber  on  the  sec- 
ond floor,  and  one  third  part  of  the  garret  in  the  main 
building;  privilege  in  the  attic  of  the  L  part;  priv- 
ilege in  the  cellar,  and  in  the  yard  and  sheds;  priv- 
ilege to  pass  and  repass  to  the  above  rooms  and  the 
well,  as  is  most  convenient," — it  was  held,  in  regard  to 
it,  that  the  privilege  of  passing  and  repassing  included 
a  right  of  passing  to  and  from  the  public  street;  that 
the  expression,  "as  is  most  convenient,"  meant  the 
convenience  of  the  tenant  in  dower;  and  that  if  the 
way  to  the  street  through  a  certain  front  door  was 
the  one  commonly  used  by  her,  and  the  most  con- 
venient, and  she  was  prevented  from  using  it  by  the 
wrongful  act  of  the  owner  in  reversion,  then  if  she 

12  Small   V.  Brainard,   44   111.  13  Maltby  v.  R.   R.    16    Md. 

355.  422. 


408  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

attempted  to  go  out  through  another  door,  which  was 
the  next  most  convenient,  the  owner  in  reversion  had 
no  right  to  prevent  her.  The  defendant  owner  in 
reversion  requested  a  charge  that  if  the  plaintiff  was 
confined  to  one  route  to  and  from  the  street,  as  she 
had  refused  to  designate  or  agree  on  that  route,  he 
had  a  right  to  select  it  for  her;  and  as  he  had  selected 
a  passage-way  from  the  west  door  to  the  street,  that 
was  her  only  lawful  way.  This  was  held  erroneous, 
as  assuming  facts  to  be  found  by  the  jury." 

§  477.  An  instruction  assuming  the  existence  of  a 
contract  in  dispute,  is,  of  course,  .erroneous  on  the 
same  principle. ^^  And  more  especially,  a  court  can 
never  be  asked  to  charge  on  the  assumption  of  a  fact 
not  only  not  conceded,  but  which  the  testimony 
strongly  tends  to  disprove.^''  And  so,  where  the  as- 
sumption is,  that  there  is  no  dispute  of  a  certain  fact, 
it  is  erroneous,  but  it  is  held  the  duty  of  the  counsel 
interested  to  call  the  attention  of  the  court  to  the 
inadvertency  at  the  time.'''  And  so,  an  indirect  as- 
sumption, by  throwing  the  weight  of  a  case  upon  a 
part  of  the  evidence,  instead  of  all  the  facts  therein, 
is  condemned  on  the  same  general  principle.'^ 

14  Miles  V.  Douglas,  34  Conu.  i6Traski;.Payne,43  Barb.  576. 

393.  17  Hoffman  v.  Ins.  Co.  1  Rob- 

^5  Chichester  v.  Wbiteleather,  ertson  (N.  Y.)  521. 

51  111.  259.  18  Koo^g  y  Tyner,  10  Ind.  61. 


Chap.  XL]         HYPOTHETICAL    INSTKUOTIOXS.  409 

CHAPTER    XI. 

Hypotih:tical  Ixstkuctions. 

§  478.  Theke  are  two  kinds  of  hypothetical  in- 
struction —  one  allowable,  the  other  vicious ;  the  one 
founded  on  the  facts  in  the  case,  the  other  wholly 
supposititious.  It  is  not  only  proper,  but  often  emi- 
nently judicious,  to  adopt  the  hypothetical  mode  of 
presenting  a  case,  as  to  the  bearing  of  the  law  thereon, 
since  the  jury  thereby  may  be  greatly  aided  in  making 
the  application  of  the  law  to  the  facts  in  evidence. 
And  hence,  in  preparing  instructions,  each  party  may 
assume  any  reasonable  hypothesis  in  relation  to  the 
facts,  and  ask  the  court  to  declare  the  law,  as  appli- 
cable to  it;  and  it  is  error  to  refuse  merely  because 
the  case  supposed  does  not  include  some  other 
hypothesis  equally  rational.^  And  where  a  party 
desires  to  obtain  instructions  on  a  particular  hypoth- 
esis, he  must  state  the  facts  hypothetically ;  and  where 
that  is  not  done,  the  refusal  to  charge  as  requested  is 
not  error.-  But  the  hypothetical  statement  must  be 
constructed  of  the  actual  facts  in  the  case.'' 

§  479.  But  the  degree  of  evidence  by  which  the 
facts  are  sustained  or  otherwise  does  not  come  into 
consideration.  And  the  Supreme  Court  of  Ohio  re- 
mark, "  It  is  doubtless  true  that  the  judge  should  not 

1  Peoples.  Taylor, 36  Cal.26'[.  SQumey  v.Smithson,  7  Bosw. 

2  R.  R.  V.  McTir-he,  46  Pa.  402  ;  State  v.  Murph,  Minst. 
St.  321  ;    R.    R.  v.    Hagan,   47     (N.  C.)  136. 

Pa.  St.  247. 


410  IXSTllUCTIONS    AND    CHARGES.  [Part  II. 

charge  the  jury  upon  a  hypothetical  case,  entirely 
without  the  testimony,  because  such  a  course  is  cal- 
culated to  mislead  the  jury,  and  induce  them  to  sup- 
pose that  such  a  state  of  facts,  in  the  opinion  of  the 
court,  was  possible,  under  the  evidence,  and  might  be 
considered  by  them.  But  where  there  is  any  evi- 
dence tending  to  prov^c  the  fact  which  the  charge 
assumes,  the  court  may  properly  make  it  the  subject 
of  comment."* 

§  480.  The  object  to  be  kept  in  view  steadily  is,  to 
state  the  law  upon  a  supposed  state  of  facts,  to  be 
found  by  the  jury,  in  such  a  manner  as  not  to  assume 
the  facts,  as  determined;  that  is,  to  state  the  law  hy- 
pothetically  arising  out  of  the  given  state  of  facts. 
That  is,  if  the  fact  is  so,  the  law  is  so;  leaving  to  the 
jury  the  finding  of  the  facts.^  Thus,  where  an  in- 
dictment charged  the  playing  of  a  banking  game 
called  keno,  on  appeal,  the  court  said,  "  Whether  the 
game  of  keno  is  a  banking  game  or  not,  is  a  mixed 
question  of  law  and  fact.  The  judge  has  the  right  to 
assume,  in  his  instructions  to  the  jur}^,  a  hypothetical 
state  of  facts,  and  say  to  the  jury,  if  they  believe  such 
a  state  of  facts  to  be  proved,  that  it  amounts  to  a 
banking  game.  But  the  jury  are  the  sole  judges  of 
the  fact,  and,  under  the  instruction  of  the  court,  they 
have  the  right  to  say  whether  the  game  placed  is  a 
violation  of  the  statute  or  not."^ 

§  481.  Where  a  hypothetical  instruction  was  to  the 
effect  that  upon  a  given  state  of  facts,  without  deter- 

4  Breese  v.  State,  12  Ohio  St.  286  ;  Ilopkinson  v.  Peoplo,  18 
155.  111.  206. 

^  Sherman  v.  Dutch.    16  111.          ^^  State    v.    Lcuarcs,    12    La. 

An.  226. 


CiiA]'.  XI.]  HYPOTHETICAL    XXSTRUCTIOXS.  411 

mining'  change  of  venue  or  time,  the  pi-isoner  Avould 
be  guilt}^  as  charged,  it  was  held  fatally  erroneous, 
although  closely  pui'suing  the  language  of  the  ])enal 
statute,  under  which  the  prosecution  was  brought/ 

§  482.  And  so  care  must  always  be  taken  lest  a 
hypothesis,  correct  at  the  beginning,  should  slide  into 
an  assumption  of  fact,  or  into  an  inference  or  con- 
clusion which  ought  to  be  left  to  the  jury.  Thus,  in 
a  certain  case,  the  Supreme  Court  of  Georgia  found 
occasion  to  remark,  "  A  careful  analysis  of  the  charge 
under  review  makes  it  apparent  that  the  judge  put 
his  reference  to  some  of  the  facts  hy^^othctically,  as 
'if  the  defendant  told  the  plaintiff,'  &c.;  *^if  Harris 
was  not  good  at  that  time,'  &c. ;  while  his  reference 
to  other  facts  was  in  terms  which  assume  that  they 
were  incontestably  proven;  as  ^Jackson,  who  was 
ignorant  of  the  condition  of  Harris  at  the  time,  and 
whose  condition  was  known  to  Buttram,'  (fcc.  The 
hypothetical  is  the  proper  form  of  putting  facts  in 
such  cases,  because  it  distinctly  puts  the  jury  on  the 
inquiry  as  to  those  facts;  but  in  relation  to  other 
facts  put  positively  before  them,  put  as  facts  ascer- 
tained, in  the  same  Connection,  in  the  same  sentence, 
they  are  much  less  apt  to  feel  the  necessity  of  inquiry. 
Indeed,  these  different  modes  of  treating  different 
facts  would  seem  to  give  a  double  assurance  that  they 
are  relieved  from  the  necessity  of  scrutinizing  the 
evidence  for  the  proof  of  some  of  them :  (1)  Because 
the  judge  has  treated  them  as  proven;  (2)  Because 
he  has  cautiously  treated  others  as  doubtful."  ^ 

'  Fanall  v.  State,  32  Ala.  ^  Buttram  v.  Jackson,  32  Ga. 
559.  413. 


412  INSTRUOTIOXS   AND    CHAKGES.  [Paut  II. 

§  483.  In  an  action  of  trespass  for  illegally  remov- 
ing a  pauper  (the  plaintiff),  his  family  and  eflccts, 
breaking  and  entering  the  plaintiff's  house  for  that 
i:>urpose,  the  following  instructions  were  held  rightly 
refused,  being  offered  by  plaintiff :  (1)  That  if  the 
defendants  entered  the  plaintiff's  house  without  au- 
thority of  law,  and  by  permission  of  plaintiff,  he  ]:)er- 
mitting  them  to  enter,  as  an  act  of  hospitality,  and  if 
they,  being  thus  in,  removed  his  children  or  goods,  or 
did  any  illegal  act  against  the  will  of  the  plaintiff,  or 
against  his  consent,  it  would  render  them  trespassers. 
(2)  That  if  they,  by  color  of  law,  or  claiming  to  have 
authority  as  overseers  of  Madison,  when  they  had 
not  such  authority,  entei'ed  under  such  pretence  b}^ 
consent  of  the  plaintiff,  he  being  led  by  them  to  sup- 
pose they  were  so  authorized,  and  removed  his  family 
or  goods,  or  did  any  other  illegal  act  against  plain- 
tiff's consent,  they  would  be  liable.  These  were  held 
aside  from  the  issue,  and  purely  hypothetical,  because 
the  question  was  not  wdiether  the  defendants  became 
trespassers  by  acts  committed  after  they  had  entered 
by  permission,  but  wiiether,  by  such  illegal  acts,  they 
became  trespassers  qiiare  clausum,^  But  I  doubt 
whether  the  principle  of  this  case  would  be  generally 
adopted,  since  a  trespass  committed  after  a  peaceful 
entrance,  but  which  entrance  was  m  pursuance  of  the 
design  of  the  subsequent  act,  w  ill  make  the  actor  a 
trespasser  ah  initio,  and  hence  support  an  issue  of 
trespass  quare  clausum.  The  second  instruction 
would,  however,  be  erroneous  in  leaving  a  question 
of  law  to  the  jury,  by  the  words  "  other  illegal  acts." 

9  Hunnewell  v.  Ilobart,  42  Me.  566. 


Chap.  XL]         HYPOTHETICAL    INSTEUCTIONS.  413 

§  484.  In  an  action  against  a  common  carrier  for 
negligence,  the  following  instructions,  in  a  hypothetical 
form,  were  held  improperly  refused:  "  (1)  Although 
the  jury  may  believe,  from  the  evidence,  that  it  was 
nsnal  for  steamboats  running  at  night  to  carry  torch- 
hghts,  and  that  they  do  not,  under  these  circum- 
stances, usually  cover  the  cotton  with  tarpaulin  or 
anything  else,  yet  if  they  also  believe  that  the  cotton 
was  exposed  to  the  sparks  froiji  the  torch-lights,  and 
that  the  fire  in  this  case  did  originate  in  that  source, 
this  is  prima  facie  such  negligence  as  will  make  the 
defendants  liable,  although  the  bill  of  lading  excepts 
the  dangers  of  fire.  (2)  That  if  the  jury  should  be- 
lieve that  the  cotton  on  the  forecastle  of  the  steam- 
boat was  torn  and  ragged,  and  was  uncovered,  and 
exposed  to  the  sparks  from  the  torch-lights,  and  that 
the  fire  originated  in  said  cotton  from  the  torch-lights, 
and  was  communicated  to  plaintiff's  cotton  —  this  is 
such  negligence  as  will  render  the  defendants  liable 
in  this  suit,  although  the  jury  should  believe  that  it 
was  usual  for  steamboats  to  carry  torch-lights,  and 
notwithstanding  the  dangers  of  fire  are  excepted  in 
the  bill  of  lading."  The  court,  on  appeal,  remarked, 
"  This  charge  suggests  the  question  whether  or  not 
the  holding  of  a  torch  by  a  carrier  in  such  manner  as 
to  expose,  uncovered,  ragged  cotton  to  the  sparks 
from  it,  and  thus  to  ignite  it,  is  negligence.  Does 
this  conduct  involve  the  omission  of  that  caution  and 
care  which  a  prudent  man  would  exercise  about  his 
own  business?  This  is  the  test  of  negligence,  and 
when  this  test  is  applied,  the  conclusion  is  inevitable 
that  the  act  was  clearly  one  of  negligence.     Ko  pru- 


414  IXSTRUCTIOXS   AND    CHARGES.  [Part  II. 

dent  man,  in  taldng  care  of  his  own  ragged  and  un- 
covered cotton,  would  hold  a  torch  in  such  a  manner 
that  s])arks  would  fall  upon  it.  The  facts  presented 
in  the  charge  admitted  of  no  other  inference  than  that 
which  the  court  was  asked  to  draw,  and  it  was  there- 
fore the  duty  of  the  court  to  give  it."  ^" 

§  485.  In  relation  to  a  boundary  line,  a  court  charged 
on  a  negative  hypothesis,  and  the  charge  was  cxcejited 
to  for  not  taking  for  granted  a  fact  well  established. 
The  instruction  was,  "  If  the  evidence  before  you  does 
not  show  that  the  boundary  line  between  the  lands  of 
plaintiff  and  defendant  was  originally  run  and  marked 
by  the  surveyor,  or  if  the  evidence  shows  you  that 
that  hne,  if  run  and  marked,  cannot  now  be  ascer- 
tained, it  will  be  your  duty  to  find  for  the  plaintiff." 
The  verdict  for  the  plaintiff  would  be,  that  the  straight 
Ime  was  the  true  one.  The  exception  was  oveiTulcd 
in  the  appellate  court,  which  remarked,  "  The  evidence 
showed  very  few  landmarks  establishing  the  straight 
Une,  perhaps  on  account  of  the  prairie  and  the  farm 
through  which  it  passed,  and  the  other  line  was  so 
crooked,  and  there  was  so  much  said  about  paths 
through  the  bottom,  that  it  was  not  rendered  certain 
that  this  was  a  line  run  in  making  the  survey.  Under 
these  circumstances,  the  court  ought  not  to  have 
charged  the  jury  that  the  line  was  run  [as  contended 
by  appellant] ,  and  there  is  nothing  in  the  charge  to 
indicate  his  opinion  in  the  least  degree  that  the  fact 
of  the  running  of  the  line  was  a  doubtful,  or  lead- 
ing, matter  of  inquiry.'' 

§  486.  Great  care  is  requisite  to  base  a  hypothesis 

10  ITibler    v.    McCartney,    31  "  Thomas  v.  Ingram,  20  Tex. 

Ala.  508.  728. 


Chap.  XL]         HYPOTHETICAL    LN^STRUCTIONS.  415 

fully  on  the  evidence.  As,  for  example,  in  a  case  of 
murder  the  judge  charged,  "  If  the  j^risoner  went  to 
the  house  of  Hodges,  having  a  deadly  weapon,  for  the 
purpose  of  taking  the  life  of  the  deceased  if  he 
should  find  him  there,  or  of  provoking  him  into  a 
fight,  and  did  so,  then  it  would  be  a  case  of  murder, 
although  they  should  believe  the  deceased  made  the 
first  assault;  "  and  it  was  held  wholly  irrelevant,  there 
being  no  proof  that  the  deceased  made  tlie  first  as- 
sault.^- And  where  it  misstates  the  issue,  an  instruc- 
tion is  erroneous,  though  hypothetical ;  as,  whether  a 
certain  transaction  was  a  conditional  sale  or  a  ])ledge, 
when  there  was  no  question  between  a  conditional 
sale  and  a  pledge,"  provided  it  is  not  apparent  that  it 
could  not  have  misled  the  jury.^* 

Where  an  instruction  was,  that  if  the  jury  believed, 
from  the  evidence  in  the  case,  that  an  injury  resulted 
from  wilful  and  reckless  negligence  of  a  railroad  com- 
pany, then  they  were  not  confined  to  the  actual  dam- 
ages sustained  by  the  plaintifi*,  but  might  give  such 
exemplary  damages  as  the  circumstances  of  the  case 
warranted,  and  there  was  no  evidence  of  wantonness, 
recklessness,  or  gross  negligence  on  the  part  of  those 
conducting  the  railroad  train  which  caused  the  injury, 
it  Avas  held  misleading.'^  And  so  instructions  based 
on  a  hypothetical  case,  when  there  is  no  evidence  tend- 
ing to  make  the  case  supposed,  are  simply  out  of 
place,  and  ought  newer  to  be  given.  They  can  only 
mislead  the  jury.'^ 

12  State  V.  Harrison,  5  Jones  ^^  Kennedy  v.  R.  R,  36  Mo. 
(N.  C.)121.  364. 

13  Smith  V.  Sasser,  ibid.  890.  ^^  Swank  v    Adm'r,  24   Ind. 
"  Ward  V.  Henry,  19  Wis.  80.     201. 


416  INSTRUCTIONS   AND   CHARGES.  [Part  II. 

CHAPTER   XII. 

Specific  Relations  to  the  Evidence. 

Herein  we  will  chiefly  confine  our  attention  to  civil 
causes  mainly,  reserving  peculiar  matters  pertaining 
to  criminal  trials  for  a  future  chapter.  And  the  sub- 
ject now  before  us  is,  instructions  which  have,  as  their 
objective  application,  evidence  and  its  incidents. 

§  487.  A  court  may  charge  as  to  the  burden  of 
proof  without  invading  the  province  of  the  jury,  as, 
for  example,  the  law  arising  upon  the  fact  that  a  vendor 
remains  in  possession  of  property  after  the  sale  there- 
of, is  the  prima  facie  presumption  that  the  sale  was 
fraudulent.  And  this  presumption,  though  not  con- 
clusive, changes  the  burden  of  proof,  and  requires 
exphuiation  to  remove  it,  and  so  to  charge  is  correct.* 

§  488.  But  an  instruction  virtually  deciding  a  fact 
for  the  jury  is  erroneous,  as  where  the  court,  on  a 
question  of  fraud  in  fact,  which  is  for  the  determina- 
tion of  a  j my,  drew  the  conclusion  of  fraud  in  obtain- 
ing a  judgment  from  the  evidence  so  as  to  virtually 
decide  it.~  And  it  is  a  ground  for  a  new  trial  so 
to  charge.^  As  a  matter  of  course,  instructions  are 
always  to  be  construed  with  reference  to  tlie  evi- 
dence,* and  it  is  no  less  requisite  when  the  evidence 
itself  is  the  specific  object  thereof.      And  also  with 

1  Gibson  v.  Hill,  21  Tex.  3  Case  ?;  Williams,  2  Cold. 239. 

2  Diinkard  t;.  Ingram,  21  Tex.  ■*  Ilooksett  v.  Company,  44 
650.  N.  II.  106. 


CiiAP.  XII.]  SPECIFIC   EELATIOXS,  ETC.  417 

reference  to  the  issue  on  which  evidence  is  presented. 
And  where,  under  a  plea  of  total  failure  of  the  con- 
sideration of  a  note,  a  defendant  may  establish  its 
partial  failure,  yet  if  he  has  introduced  no  "evidence 
from  which  such  partial  failure  could  have  been  found 
by  the  jury,  he  cannot  complain  of  a  charge  that  the 
jury  should  find  for  the  plaintiff,  unless  a  total  failure 
of  consideration  had  been  established;  for  no  party 
has  a  right  to  i*equire  more  than  that  the  court  shall 
announce  the  law  with  reference  to  such  issue  as  it  is 
practicable  for  the  jury  to  find  a  verdict  on,  consider- 
ing the  evidence  adduced  in  the  cause. ^  But  it  is 
error  to  charge  a  jury  to  exclude  from  consideration 
all  facts  not  distinctly  averred  in  the  petition,  since  it 
is  no  part  of  their  duty  to  decide  what  facts  are  so 
averred.^ 

§  489.  Where  an  instruction  given  is  decisive  of 
the  suit,  and  excludes  from  the  consideration  of  the 
jury  the  questions  raised  by  the  evidence  of  the 
opposing  party,  it  is  erroneous,^  bemg  evidently  an 
indirect  decision  of  a  want  of  credibility  in  such 
opposing  evidence.  And  so  one  which  in  an  action 
for  work  and  labor  excludes  all  consideration  of  the 
proof  of  a  special  contract.® 

§  490.  It  is  held  to  be  a  fatal  error  to  instruct  a 
jury  that  a  party  introducing  a  witness  thereby  in- 
dorses the  credibility  of  such  witness.  It  is  sufficient 
to  say  that  a  party  cannot  impeach  his  own  witness.^ 

5  Willis  V  Bullitt,  22  Tex. 330.         »  Lee  v.  Quirk,  20  111.  395. 

^  Oliver  v.  Chapman,  15  Tex.  ^  Jarnigan  v.  Fleming,  43 
401.  Miss.  111. 

'*  Clarke  v.  Hammall,  27  Mo. 
55. 

27 


418  rN"STEUCTIONS   AND    CHAIIGES.  [Part  II. 

§  491.  In  an  after  instruction  in  a  case  that  had 
been  twice  tried  before,  wherein  on  the  third  trial  the 
jury  returned,  and  said  they  could  not  find  from  the 
evidence  the  amount  of  sales  of  the  partnership  stock 
sold  by  the  defendant,  nor  the  number  and  value 
thereof  in  defendant's  possession  at  the  commence- 
ment of  the  suit,  and  the  judge  then  instructed  them 
orally  that  they  had  loiowledge  as  individuals  of  the 
value  and  increase  of  such  stock,  and  could  take  into 
consideration  that  knowledge  in  judging  of  the  evi- 
dence in  finding  their  verdict  —  this  was  held  not  a 
sufficient  ground  for  reversal. '"  But  evidently  the 
instruction  could  not  be  justified  under  any  general 
rule,  but  the  appellate  court  appear  to  have  regarded 
it  as  proper  in  order  to  make  a  disposition  of  the  case 
on  the  third  trial. 

§  492.  It  is  held  in  Indiana  not  advisable  for  a  jury 
to  carry  depositions  or  other  written  evidence  with 
them  to  their  room.  And  so,  where  a  jury  had  retired 
and  returned  into  court,  requesting  to  hear  a  portion 
of  a  deposition,  it  was  improper  for  the  court  to  ask 
them  if  they  desired  "  any  of  the  account  books,"  and 
to  offer  to  send  such  books  to  their  room.^^ 

§  493.  It  seems  that  sometimes  objections  to  a  dep- 
osition may  properly  be  referred  to  a  jury,  as  where  a 
defendant's  counsel  objected  that  the  depositions  were 
guarded  and  avoided  details,  which  indicated  a  con- 
ti'ived  plan  to  get  the  notes  into  the  hands  of  a  third 
party  for  collection,  and  the  court  charged  the  jury 
that  if  they  found   the  depositions  subject  to   this 

10  Carroll  v.  Evans,  27  Tex.  "  Eden  v.  Lingenfetter,  39 
267.  Ind.  19. 


Chap.  XII]  SPECLFIC   RELATIONS,  ETC.  419 

objection,  it  was  a  matter  they  might  take  into  con- 
sideration in  weighing  the  testimony  therein,  and  that 
the  whole  question  as  to  the  truth  of  the  depositions 
was  for  them,  it  was  held  properly  submitted.'^ 

§  494.  But  the  reference  of  written  instruments  in 
evidence  to  be  construed  by  the  jury  is  erroneous,  as 
it  is  a  question  of  law  for  the  court;  as  where  an 
instruction  was  to  the  effect  that  a  certain  entry  was 
a  sufficient  memorandum  in  writing  of  a  contract  to 
bind  the  defendant,  provided  that  the  jury  should  find 
it  ^'cither  expressly  or  according  to  the  sense  and 
signification  of  its  language  and  figures  under  the 
established  usage  and  custom  of  merchants  in  the  city 
of  Baltimore  at  the  time,  &c.,  represented  truly  and 
fully  the  terms  of  and  parties  to  the  contract  of  sale," 
it  was  held  error  in  that  it  referred  to  the  jury  the 
construction  of  the  entry  or  memorandum.'^  And  so 
a  charge  which  refers  to  the  jury  the  construction  of 
any  provision  in  a  mortgage,  the  validity  of  which  is 
controverted  before  them,  is  erroneous.'* 

§  495.  In  some  states  the  court  may  state  the  tes- 
timony directly,  and  charge  the  law  thereon,  but  not 
in  others.     It  is  mainly  a  statutory  regulation.'^ 

§  496.  But  the  force  and  effect  of  testimony  may 
sometimes  be  charged,  as  if  the  testimony  of  a  cer- 
tain witness  is  believed  it  will  establish  a  specified 
fact,  leaving  the  jury  to  believe  or  disbelieve  the  wit- 
ness.'"    But  care  must  be  taken  to  state  correctly  the 

12  dough  v.  Patrick,  37  Vt.  ^^  Case   v.  Williams,  2  Cold. 

421.  (Tenn  )   239;    Ayros   v.    Moul- 
in Williams  v.  Woods,  16  Md.  ton.  5  Cold.  156.    Contra,  R.  R. 

220.  V.  Kondrick,  40  Miss.  389. 

.    "  Price  V.  Mazange,  81  Ala.  ^'^  Russell     v.    Ely,    2    Black 

701.  (U.S.)  576. 


420  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

force  and  effect  of  evidence,'^  and  that  the  statement 
does  not  exckide  a  material  fact,'*^  submitting  the  effect 
distinctly  to  their  consideration  and  judgment.'^ 

§  497.  Where  a  defendant  introduced  the  testimony 
of  an  expert  to  prove  handwriting,  the  jury  were  in- 
structed in  substance  that  the  law  permitted  men  who 
had  oppoi'tunity  by  education  and  practice  for  acquir- 
ing peculiar  skill  in  judging  of  handwriting  to  testify 
their  opinion  as  to  the  genuineness  or  identity  of 
specimens  submitted  to  then*  inspection  —  such  opin- 
ion was  evidence  to  be  considered  by  the  jury  in 
coiniection  with  the  other  evidence  bearing  on  the 
subject,  but  was  not  of  itself  conclusive;  that  the  rule 
of  law  permitting  them  to  testify  their  opinion  was 
grounded  on  the  fact  that  generally  such  opinion  was 
correct;  that  the  value  of  such  opinion  was  to  be 
determined  by  the  jury,  having  refei'cnce  to  the  skill 
and  competency  which  the  witness  manifested,  in  con- 
nection with  the  other  evidence  which  was  before 
them  to  be  considered  in  determining  whether  the 
disputed  letters  were  in  the  plaintiff's  handwriting; 
that  experts  were  not  infallible;  generally  their  opin- 
ions were  reliable,  but  sometimes  they  were  wrong; 
that  the  court  had  in  many  instances  known  them  to 
hit  right,  and  in  some  instances  wrong.  On  excep- 
tion the  instruction  was  sustained.^" 

§  498.  As  to  a  restriction  of  the  right  of  the  court 
to  comment  on  the  evidence,  it  is  statutory  in  part. 
But  wherever  there  is  no  statute  prohibiting  it,  I  sup- 

1"  Connelly  v.  Walker,  45  Pa.  ^^  g^idy  ^  Qray,  4  Allen.  438. 
St.  453.  20  Pratt  v:  Rawson,   40   Vt. 

18  R.  R.  V.  Porter,  19  Md.  468.     188. 


Chap.  XIL]  SPECIFIC   IIELATI0:N'S,  ETC.  421 

pose  the  right  exists.  But  it  must  never  be  carried 
so  far  as  to  virtually  decide  the  case,  or  any  of  the 
material  facts  therein.  And  to  guard  this  is  the 
object  of  prohibitory  statutes.  The  Supreme  Court 
of  California  in  a  certain  case  manifested  a  decided 
repugnance  to  the  restraint.  "  The  court,"  the  opinion 
goes  on  to  say,  "  could  not,  under  the  constitution  of 
this  state,  which  prohibits  judges  from  charging  in 
respect  to  facts,  decline  without  error  to  present,  for 
the  consideration  of  the  jury,  the  law  applicable  to 
that  theory,  should  they  find  it  the  true  theory  of  the 
case.  If  mischief  results  from  such  a  course,  it  is  not 
due  to  the  court,  but  to  the  inflexible  rule  by  which 
the  court  is  governed.  At  common  law  judges  are 
not  thus  fettered,  but  are  allowed  to  charge  in  respect 
to  facts,  and  express  their  opinion  as  to  the  weight  of 
evidence.  The}'  may,  therefore,  direct  the  attention 
of  the  jury  to  the  facts  and  circumstances  which  they 
deem  to  be  of  controlling  weight,  and  warn  them 
against  false  lights.  Which  is  the  wiser  rule  is  not  for 
us  to  say;  but  it  admits  of  serious  doubt  whether  the 
cause  of  justice  has  been  promoted  by  the  adoption 
of  the  rule  by  which  the  courts  of  this  state  are  gov- 
erned. There  could  have  been  no  object  for  the 
charge  except  to  afford  to  life  and  liberty  further 
protection  against  judicial  dishonesty  and  tyranny. 
Such  a  movement  would  have  found  fitting  occasion 
when  Henry  YIII.  divorced  [and  murdered]  his 
wives,  and  kindled  the  fires  of  the  auto  da  fe;  or 
when  Jeffreys  advised  and  judicially  enforced  the 
despotic  and  sanguinary  measures  of  James  II. ;  but 
in  this  day  and  place,  the  ermine  is  not  the  gift  of 


422  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

tyrants,  but  of  the  people,  whose  will  is  subserved  by 
an  honest,  not  corrupt,  exercise  of  its  functions ;  and 
to  deprive  the  jury  of  the  aid  and  experience  of  the 
judge  in  sifting  and  weighing  the  testimony  may  be 
of  doubtful  wisdom.""' 

In  Maine,  it  is  held  that  comments  upon  the  testi- 
mony in  the  charge  by  the  judge  furnish  no  ground 
of  exception,  and  will  not  be  considered  as  depriving 
one,  even  in  a  criminal  case,  of  an  impartial  trial, 
when  the  jury  are  so  instructed  that  they  must  neces- 
sarily understand  that  they  are  the  judges  of  the  facts 
proved,  and  responsible  for  the  inferences  drawn  there- 
from, and  when,  accordingly,  a  fair  construction  of  the 
charge  does  not  authorize  an  inference  that  the  jury 
w^ere  insti'ucted  imperatively  and  as  matter  of  law  on 
the  force,  effect,  and  weight  of  the  evidence,  w^hat  the 
proof  was,  or  that  certain  facts  were  in  evidence ;  but 
the  judge,  directing  attention  to  certain  suggestions 
developed  by  the  testimony,  left  those  matters  to  their 
consideration." 

In  Indiana,  it  is  held  that  justice  is  often  promoted 
by  judicious  comments.  But  "the  court  is  not  bound 
to  remark  on  the  evidence,  and  whenever  it  is  done 
it  should  be  w^ith  great  care  and  caution,  and  the  jury 
always  be  distinctly  told  that  such  observations  are 
submitted  to  aid  them  in  making  inferences  from  the 
evidence,  and  not  to  control  them;  that,  after  all,  they 
are  exclusively  responsible  for  the  facts  which  they 
shall  find.  The  law  of  the  case  the  court  must  give 
to  the  jury  when  asked,  and  the  jury  must  act  upon  it, 

21  People  V.  Taylor,  36  Cal.  22  gtate  v.  Eeed,  62  Me.  129. 
266. 


Chap.  XII.]  SPECrPIC   EELATIOXS,  ETC.  423 

when  given,  without  question,  in  a  civil  case.  It  is  a 
grave  question  of  poUcy  whether  the  presiding  judge 
should  discuss  the  evidence  at  all  in  his  charge  to  the 
jury.  It  was  the  practice  of  the  English  judges  to 
do  so,  and  in  this  state  it  has  not  been  prohibited;  and 
so  long  as  the  nisi  prius  bench  shall  be  occupied  by 
gentlemen  of  integrity  and  learning,  guided  in  the 
discharge  of  their  duties  by  a  love  of  impartial  jus- 
tice, it  is  not  at  all  probable  that  the  legislature  will 
interfere  to  limit  this  authority  derived  from  the  com- 
mon law.  Some  of  our  states  have  by  legislation  re- 
stricted the  judge  to  giving  merely  the  law  of  the  case 
to  the  jury,  but  it  is  not  very  evident  that  the  certain 
administration  of  justice  has  been  aided  thereby.""^ 

In  IS'ew  Jersey,  a  judge  has  an  undoubted  I'ight  to 
make  such  comments  as  he  thinks  necessary  or  proper 
for  the  direction  of  the  jury.  He  may  intimate  an 
opinion  as  to  the  weight  of  evidence,  or  call  the  atten- 
tion of  the  jury  to  any  matter  in  the  cause  affecting 
the  credibility  of  a  witness,  all  this  being  a  matter  of 
judicial  discretion  not  subject  to  review  in  error .~* 

In  Minnesota,  the  judge  is  held  not  authorized  un- 
der the  statute  to  express  any  opinion  upon  the  facts 
so  as  to  influence  the  jury  in  their  decision ;  and  when, 
on  the  question  of  the  delivery  of  personal  property, 
the  judge  stated  in  his  charge  that  he  "  saw  nothing 
in  the  case  that  went  to  show  that  the  delivery  to  the 
plaintiff  was  not  valid  under  the  circumstances,"  it 
was  held  error,  and  that  the  error  was  not  cured  by 
the  qualification  of  the  remark  that  he  only  spoke  "  so 

23  Shank  v.  State,  ex  rel.  25  ^  Bruch  v.  Carter,  32  N.  J 
Ind.  208.  654. 


424  INSTRUCTIONS   AND   CIIAEGES.  [Paet  II. 

far  as  it  was  in  the  province  of  the  court  to  determine 
the  question."-^ 

In  Iowa,  held  that  a  charge  must  be  strictly  con- 
fined to  matters  of  law,  and  the  court  must  not  com- 
ment on  the  evidence,  and  instruct  what  facts  are  and 
what  are  not  proved.^"  And,  indeed,  in  all  the  states 
this  would  doubtless  be  considered  as  going  too  far. 
"Where  comments  are  allowed,  they  should  be  mainly 
hypothetical,  and  must  not  take  the  questions  from  the 

§  499.  It  is  the  province  of  the  court  to  judge  of 
the  admissibility  of  evidence,  but  when  admitted  it  is 
the  province  of  the  jury  to  judge  of  its  materiality. 
And  so  where  the  jury  were  instructed  that  it  was 
immaterial  whether  a  carriage  was  purchased  before 
the  notes  were  given,  &c.,  it  was  held  error  as  an  in- 
vasion of  the  province  of  the  jury.-^  And  the  cred- 
ibility of  testimony  is  also  for  them  exclusively.^^  And 
so  where  the  testimony  of  a  plaintiff  and  of  a  defend- 
ant were  directly  in  conflict,  and  the  former  was  cor- 
roborated by  another  witness,  it  was  held  error  to 
instruct  the  jury  that  if  they  believed  that  the  testi- 
mony of  the  first  two  witnesses  was  entitled  to  equal 
credit,  the  testimony  of  the  third  created  a  preponder- 
ance of  testimony  in  favor  of  the  plaintifi",  unless  there 
was  some  fact  or  evidence  tending  to  corroborate  the 
defendant,  and  that  a  judgment  for  the  plaintifi"  would 
be  reversed  for  such  an  error,  although  the  court  also 

25  Caldwell  v.  Kennison,  4  27  stacy  v.  Cobbs,  36  111. 
Min.  47.  351. 

26  Russ  V.  Steamboat,  9  Iowa,  28  Commonw.  v.  Barry,  9 
3U.  Allen,  278. 


Chap.  XII]  SPECIFIC    KELATIOI^S,    ETC.  425 

charged  the  jury  that  they  were  generally  the  exclu- 
sive judges  of  the  credibility  of  witnesses.'-'^ 

§  500.  However,  a  judge  may  charge  a  jury  as  to  a 
rule  of  estmiating  credibility;  as  where  a  witness, 
testifying  to  material  facts,  as  to  which  deliberate 
false  swearing  would  be  perjury,  is  contradicted  by 
other  witnesses,  the  court  may  charge  that  if  they 
believe  the  witness  has  knowingly  sworn  falsely  in 
reference  to  any  fact,  he  is  not  entitled  to  be  believed 
in  reference  to  any  other  fact  testified  to  by  him.^'^ 
And  where  the  judge  called  the  attention  of  the  jury 
to  the  sworn  contradiction  of  herself  by  a  principal 
witness,  and  said  that  it  was  a  strong  circumstance 
tending  to  discredit  her  testimony  on  the  last  trial, 
but  that  the  amount  of  credit  due  to  that  testimony 
was  a  question  for  them  to  determine,  it  was  held  not 
error  .^^ 

But  a  charge  that  if  the  jury  believe  the  testimony 
of  witness,  they  must  find  for  the  plaintiff,  but  if  they 
believe  the  testimony  of  another,  they  must  find  for 
the  defendant,  is  error,  because  it  assumes  that  there 
is  an  irreconcilable  conflict  in  the  testimony  of  the 
two  witnesses,  and  so  is  an  invasion  of  the  province 
of  the  jury;''-  And  so  where  several  witnesses  are 
contradictory,  the  judge  may  properly  refuse  to 
charge  what  the  verdict  should  be,  should  they  be- 
lieve the  truth  of  the  testimony  of  a  particular 
witness.^^ 

29  Ely  V.  Tesch,  1*7  Wis.  202.         32  Cain    v,    Penix,    29    Ala. 

30  Koth  V.   Wells,   29   N.  Y.     3U. 

4U.  33  Bailey  v.  Bailey,  97  Mass, 

31  Dunn  V.  People,  29  N.  Y.     373. 
523. 


i26  INSTRUCTIONS   AND    CHARGES.  [Part  II. 

And  still  more  is  it  error,  inidcr  conflicting  testi- 
mony, to  take  the  point  from  the  jury,  and  decide  it 
for  them.''* 

§  501.  The  weight  of  evidence  is  also  for  the  jury, 
and  the  court  is  not  at  liberty  to  inform  the  jury  which 
evidence  is  the  stronger  in  a  conflict.  The  value  of 
all  testimony  is  to  be  ascertained  by  the  jury  in 
weighing  it  and  finding  which  way  it  preponderates.^ 
In  a  trial  of  title,  the  following  instruction  was  held 
erroneous,  as  a  charge  on  the  weight  of  evidence: 
"In  order  to  enable  the  defendant  to  recover,  he  must 
show  that  the  plaintifi*  had  a  legal  or  equitable  right 
to  the  land  ten  years  before  the  suit  was  brought. 
This  is  not  shown  by  the  mere  production  of  the  field- 
notes,  without  the  certificate  and  proof  of  its  gen- 
uineness. Having  failed  to  do  this,  you  will  inquire 
whether  Kimbro  has  had  the  land  ten  years  since 
the  issuance  of  the  patent.  You  will  find  for  the 
plaintifl'."-^« 

§  502.  The  sufiSciency  of  evidence  is  for  the  jury, 
accordingly,  where  there  is  a  contrariety.^^  Thus,  it 
was  adjudged  error  in  a  case  where  there  was  a  com- 
plicated account,  among  the  items  of  which  was  a 
large  quantity  of  corn,  and  evidence  tending  to  estab- 
lish the  correctness  of  this  item,  for  the  judge  to 
charge  the  jury  to  disregard  all  items  in  the  defend- 
ant's account,  "  except  for  commissions,  sacks,  meat, 
twine,  labor  on  boats,  and  ice,"  —  since  it  was  the 

84  Brooks  V.   R.  R.  15  Mich.  ^  Kimbro    v.    Ilamilton,    28 

332.  Tex.  5GG. 

^  Rockwood  V.  Poundstone,  ^'  McNeill  v.  Arnold,  22  Ark. 

38  111.  199.  4.11. 


Chap.  XII.]  SrECITIO   RELATIONS,  ETC.  427 

province  of  the  jury,  and  not  of  the  court,  to  deter- 
mine what  charges  were  proved."  ^^ 

And  the  following  instruction,  given  for  the  plain- 
tiff, was  held  erroneous,  in  excluding  evidence  of  a 
new  agreement  for  an  extension  between  landlord  and 
tenant,  and  therefore  evidence  whether  the  old  lease 
was  surrendered,  and  a  new  tenancy  created.  "  The 
jury  will  disregard  all  the  evidence  offered  in  this 
cause  tending  to  show  a  discharge  of  the  covenants 
to  pay  rent  reserved  in  the  lease  offered  in  this  cause, 
as  it  would  be  improper  for  them  to  consider  any 
proof  for  that  purpose,  unless  such  proof  is  in  writ- 
ing, and  under  the  seal  of  the  party."  ^^  And  where  a 
court  charged  thus,  "ISTor  is  there  any  ground  or  rea- 
son for  a  recovery  against  him,  under  the  law  and 
evidence  in  this  case,"  it  was  held  error,  because  the 
jury  should  be  left  free  to  decide  upon  the  evidence 
submitted.*"  And  again,  where  the  charge  was,  "that 
the  only  question  for  them  to  consider  was  whether 
or  not  the  defendant  made  the  contract  sued  on,  and 
that  if  she  did  make  such  contract  as  testified  to,  the 
plaintiff  was  entitled  to  recover  the  amount  agreed 
upon  in  said  contract,"  *^  it  was  held  erroneous,  be- 
cause it  excluded  the  question  of  payment  for  services 
embraced  in  the  evidence.  And  so,  where  the  ruling 
of  the  court  virtually  excluded  evidence,  in  regard  to 
the  statute  of  limitations,  by  restricting  an  adverse 
claim  to  the  date  of  a  patent.*^ 

38  Myers  v.  Walker,  31  111.  ^i  Lamar  v.  Glawson,  38  Ga. 
363.  254. 

39  White  V.  Walker,  31  111.  ^2  Kimbro  v.  Hamilton,  28 
432.  Tex.  568. 

40  King  V.  King,  31  Ga.  205. 


428  INSTRUCTIONa    and    CHAKGES.  [Part  II. 

§  503.  The  Supreme  Court  of  Alabama  has  laid 
down  the  general  rule,  as  to  charges  concerning  evi- 
dence, drawn  from  a  long  list  of  precedents  in  that 
state,  thus :  — 

1.  A  general  charge  on  the  effect  of  evidence  can- 
not be  given  where  there  is  any  conflict  in  the  evi- 
dence as  to  any  material  point  involved  in  the  deter- 
mination of  the  cause. 

2.  Such  a  charge  is  erroneous  where  any  fact 
necessary  to  the  decision  of  the  cause  has  to  be 
inferred  from  the  evidence,  and  which  is  not  a  legal 
presumption  from  it. 

3.  When  the  plaintiff  alone  introduces  testimony, 
such  a  charge  is  equivalent  to  a  demurrer  to  the  evi- 
dence; or  such  a  charge  in  favor  of  the  plaintiff,  on 
the  evidence  of  the  defendant,  has  the  same  effect  as 
a  demurrer  thereto  would  have. 

4.  Where  both  parties  introduce  evidence,  such  a 
charge  may  be  given,  if  there  is  no  conflict  in  the 
evidence  on  any  material  point,  and  there  is  no  fact 
to  be  inferred  by  the  jury  from  the  evidence,  material 
to  the  decision  of  the  cause,  one  w^ay  or  the  other. 

5.  Where  both  parties  introduce  evidence,  and 
there  is  no  conflict  therein  as  to  a  material  point,  and 
the  facts  to  be  mferred  are  legal  presumptions,  the 
court  may  give  a  general  affirmative  charge;  but  in 
all  cases  it  must  be  predicated  upon  a  belief  of  the 
evidence  by  the  jury. 

6.  'VVHiere  both  parties  introduce  testimony,  and  it 
only  tends  to  prove  the  claim  of  the  plaintiff,  or  the 
defence  of  the  defendant,  it  is  erroneous  to  give 
a  general  affirmative  charge  on  the  effect  of  the 
evidence. 


Chap.  XII.]  SPECmC    RELATIONS,    ETC.  429 

7.  The  courts  should  be  careful  not  to  invade  the 
province  of  the  jury.  And  the  court  thereon  re- 
marks, "The  application  of  these  rules  occasionally 
becomes,  in  practice,  a  matter  requiring  nice  discrimi- 
nation ;  and,  in  cases  of  difficulty  or  doubt,  the  proper 
coui'se  would  be  to  leave  it  to  the  jury  to  decide, 
under  appropriate  instructions  from  the  coui't,  so  as 
to  secure  the  parties  the  right  of  trial  by  jury ;  and 
should  the  jury  make  any  clear  mistake  in  their  ver- 
dict, it  could  be  set  aside  upon  an  application  for  a 
new  trial."  " 

§  504.  Wliere  a  jury  were  instructed  that  they 
might  find  a  verdict,  on  a  recital  in  a  deed  of  an 
agreement  in  writing,  on  which  there  was  no  proof  of 
loss,  or  of  the  actual  existence  of  the  agreement, 
other  than  the  recital,  it  was  held  error,  because  the 
"  court  passed  all  these  requirements  [of  the  statute 
of  frauds]  at  a  bound,  and  gave  the  jury  unrestrained 
license  to  find  for  the  plaintiif,  on  the  admission  or 
recital  in  the  deed  that  an  article  of  agreement  had 
existed,  without  further  inquiry  into  its  loss  or 
contents."  ^ 

§  505.  It  is  not  essential  that  there  should  be  direct 
testimony  upon  a  point,  in  order  to  afibrd  a  proper 
basis  for  an  instruction;  it  is  sufficient  if  there  are 
circumstances  from  which  the  fact  involved  may  be 
inferred.*^ 

§  506.  In  Texas  the  rule  is  laid  down,  that  "  when 
the  facts  of  a  case  require  a  knowledge  on  the  part 

43  Morris  V.  Hall,  41  Ala.  534.          45  Tyler    v.   Tel.    Co.   60   111, 

44  Allen  v.  Allen,  45  Pa.    St.     423. 
474. 


430  INSTRUCTIONS   AND    CHARGES.  [Paut  II. 

of  the  jury  of  the  different  classes  or  kinds  of  evi- 
dence, it  is  the  duty  of  the  court  to  charge  them  in 
general  terms  as  to  the  distinguishing  characteristics 
of  those  different  kinds,  and  the  credit  which  under 
ordinary  circumstances  may  be  placed  on  evidence  of 
either  class;  but  imder  our  [the  Texas]  statute,  the 
court  will  not,  as  a  general  rule,  be  authorized  to  refer 
the  jury  to  any  particular  evidence  before  them,  and 
characterize  it  as  the  highest  or  other  degree  of 
evidence  "  ^^ 


CHAPTER  Xin. 

Instructions  relating  to  Damages. 

§  507.  There  are  two  classes  of  damages  —  com- 
pensatory and  exemplary.  In  cases  of  trespass  or 
torts,  accompanied  by  oppression,  fraud,  malice,  or 
negligence,  so  gross  as  to  raise  a  presumption  of 
malice,  the  jury  have  a  discretion  to  award  exem- 
plary or  vindictive  damages.  But  in  all  other  cases 
of  civil  injur}'-  or  breach  of  contract,  the  object  is  to 
give  compensation  to  the  party  injured  for  the  actual 
loss  sustained.  The  amount  of  compensatory  damages 
is  held  to  be  a  question  of  law  not  governed  by  any 
arbitrary  assessment,  nor  left  to  the  fluctuating  dis- 
cretion of  either  judge  or  jury.  Compensation,  in 
its  legal  signification,  consists  in  remuneration  for  loss 
of  time,  necessary  expenditures,  and  for  permanent 
disability,  if  such  be  the  result.' 

46  Walker  v.  State,    37   Tex.  ^  Parker  v.  Jenkins,  3  Bush. 

366.  (Ky.)  587. 


CuAP.  XIII.]      LN^STRUCTIOXS   AUOUT   DAMAGES.  431 

It  is  not  error  to  instruct  the  jury  that  they  not 
only  may,  but  ought  to,  give  exemplary  damages  if 
they  find  the  facts  which  are  held  to  justify  such 
damages." 

§  508.  Where  the  jury  are  instructed  as  to  exem- 
plary damages,  it  is  held,  in  Illinois,  the  presumption 
is  that  it  influenced  their  verdict  even  when  the  dam- 
ages do  not  seem  to  be  excessive,  considered  merely 
as  compensatory,  and  the  error  will  reverse  the  judg- 
ment on  appeal.  So  in  a  case  against  a  railroad,  where 
the  instruction  was,  that  "the  amount  of  damages  to 
be  recovered  for  personal  injuries  rests  much  in  the 
discretion  of  the  jury;  and  they  have  a  right  not  only 
to  compensate  the  plaintiff  for  all  moneys  by  him  paid 
out,  and  for  personal  injuries,  but  to  punish  the  de- 
fendant according  to  the  circimistances  of  the  case, 
if  the  defendant  has  been  guilty  of  wilful  misconduct 
in  perpetrating  the  injury,"  and  there  was  no  proof 
of  wilful  misconduct, — the  appellee  claimed  that  the 
jury  had  not  awarded  vindictive  damages,  so  that 
there  was  no  injury  done  thereby  to  appellant.  But 
the  court  said,  "We  have  no  means  of  knowing 
whether  they  did  or  not  [award  vindictive  damages]. 
The  attention  of  the  jury  was  directed  to  that  fact  as 
an  element  of  increased  damages,  and  we  may  pre- 
sume that  the  instruction  coming  from  the  court  had 
its  due  influence,  and  made  its  impression  on  the 
minds  of  the   jury  against  the  appellant."  ^ 

But,  in  Texas,  the  rule  is  held  to  be  the  other  way;* 
and  this  I  would  think  to  be  more  in  conformity  with 

2  Hooker  V.  Newton,  24  Wis.  *  Fitzpatrick  v.  Blockec,  23 
292.  Tex.  552. 

8  R.  R.  V.  Manly,  58  111.  304. 


432  INSTRUCTIONS   AND    CHABGES.  [PAnT  11, 

the  general  principle  that  a  harmless  instruction, 
though  erroneous,  will  not  reverse  when  it  was  evi- 
dently without  effect,  leaving  the  verdict  what  it 
would  hav^e  been  without  it.  (But  see  §  510,  infra, 
for  confirmation  of  the  Illinois  decision.) 

§  509.  Where  a  court,  in  charging  the  jury  that 
they  might  give  exemplary  damages  in  trespass,  if 
they  found  it  attended  by  circumstances  of  aggrava- 
tion, remarked,  playfully,  in  illustration,  "  Such  dam- 
ages as  would  teach  the  old  gentleman  not  to  violate 
the  Sabbath,  nor  injure  his  health  by  riding  in  the 
night,  nor  interfere  with  the  rights  of  others,"  it  was 
held  error  because  the  remarks  were  calculated  to 
make  the  jury  believe  that  the  facts  justified  heavy 
exemplary  damages.^ 

§  510.  It  is  held  in  Wisconsin,  that  for  injuries  in- 
flicted by  a  domestic  animal  permitted  to  run  at  large, 
and  alleged  to  have  been  known  by  defendant  to  be 
vicious  and  disposed  to  injure  mankind,  exemplary 
damages  are  allowed  only  on  proof  of  gross  and  crim- 
inal negligence,  evincing  a  wanton  disregard  of  the 
safety  of  others,  and  in  law  equivalent  to  malice. 
And  where  the  evidence  will  admit  of  doubt  as  to  the 
existence  of  such  negligence,  it  is  error  to  instruct  the 
jury,  without  qualification,  that  they  may  find  exem- 
plary damages;  that  this  is  one  of  those  cases  in  which 
such  damages  are  allowed.  And  a  judgment  for  the 
plaintiff  will  be  reversed  and  a  new  trial  granted  for 
such  error,  although  the  damages  found  by  the  jury 
do  not  appear  to  the  appellate  court  excessive.*'  (See 
§  508,  supra.) 

s  llair  v\  Little,  28  Ala.  23Y.     ^  Pickett  v.  Crook,  20  Wis.  358. 


Chap.  XIII.]    rN"STRUCTIO:N'S   ABOUT   DAMAGES.  433 

§  511.  It  is  held  no  eiTor  for  a  judge  to  state  the 
rule  of  damages  in  cases  having  some  resemblance  to 
that  before  him,  in  order  to  suggest  that  they  do  not 
apply  to  that  case  at  bar.'' 

§  512.  Where  A  sold  B  a  lot  of  washed  wool,  at 
forty-six  cents  per  pound,  to  be  delivered  in  about 
nine  or  ten  days  after  paid  for,  suit  was  brought  by 
the  seller,  alleging  a  readiness  to  deliver,  and  a  fail- 
ure on  the  part  of  the  buyer  to  pay  for  it,  whereon  he 
had,  after  notice  to  the  buyer,  sold  it  at  auction  for 
twenty-five  cents  per  pound ;  to  which  allegations  the 
buyer  made  answer,  that  there  was  some  unwashed 
wool  in  the  lot  offered  under  the  agreement,  which  he 
refused  to  receive  and  pay  for,  and  the  seller  refused 
to  throw  out.  On  the  trial  this  instruction  was  given: 
^^  In  this  sale  the  plaintiffs  were  bound  to  act  in  good 
faith  as  the  agents  of  the  defendants,  and  it  is  a  ques- 
tion of  fact  for  the  jury  to  determine  from  the  evi- 
dence, whether  they,  the  plaintiffs,  sold  this  wool  in 
good  faith,  and  if  so,  what  it  brought  at  that  sale.  If 
this  wool  was  not  sold  in  good  faith,  but  it  was  a  mere 
sham  sale,  the  plaintiffs  cannot  succeed  in  this  suit  in 
recovering  damages  from  the  defendants  for  not  re- 
ceiving and  paying  for  the  wool."  This  was  held 
erroneous,  because  in  effect  it  told  the  jury  that  if 
they  found  the  auction  sale  a  sham,  they  could  not  at 
all  find  for  the  plaintiffs,  whereas  it  ought  merely  to 
have  been  shaped  so  as  to  direct  them  to  the  bearing 
of  that  fact  upon  the  measure  of  damages.^ 

§  513.  Where  there  is  a  remote  cause  of  injury,  and 

7  Hackett  v.  R.  R.  42  N.  11.         8  Barbae    v.   Laws,    15   Ind. 
390  112. 

28 


434:  IKSTKUCTIONS    AND    CHARGES.  [Part  II. 

where  the  evidence  is  conflicting,  the  conrt  may  prop- 
erly decline  to  instruct  that  under  the  peculiar  circum- 
stances of  the  case,  the  cause  of  injury  is  too  remote 
to  render  defendants  liable,  for  in  such  a  case,  the  pe- 
culiar circumstances  of  the  cause  are  unsettled,  and 
the  court  cannot  ascertain  them,  but  must  refer  them 
to  a  jury.^ 

"Where  damages  are  to  be  assessed  for  the  appro- 
priation of  land  under  eminent  domain,  a  witness  as 
to  value  may  be  cross-examined,  to  find  what  he  takes 
into  consideration  in  making  up  his  judgment.  And 
in  case  it  should  appear  thereon  that  he  has  assumed 
a  false  basis  of  computation  of  value,  as  that,  in  ap- 
praising the  land  left,  he  considered  remote  conse- 
quences of  the  appropriation,  the  court  should  instruct 
the  jury  that  the  estimate  based  upon  such  consider- 
ations is  not  to  be  regarded.^® 

§  514.  A  court  may,  in  Pennsylvania,  properly  ex- 
press an  opirfion  in  an  action  for  false  imprisonment, 
that  more  than  nominal  damages  should  be  given, 
where  the  question  as  to  what  amount  shall  be  given 
is  fully  left  to  the  jury." 

§  515.  In  case  of  slander,  an  instruction  is  correct 
which  informs  the  jury  that  the  law  implies  damages 
from  the  sjieaking  of  the  words,  and  implies  that  the 
speaker  intends  the  efiect  the  words  naturally  tend  to 
produce,  and  that  the  jury  are  to  determine  what  dam- 
ages ought  to  be  given,  if  they  find  a  verdict  of 
guilty.'- 

^  Holmes  V.  Watson,  29  Pa.  "  Oswald  v.  Kennedy,  48  Pa. 

St.  45T.  St.  9. 

1^  Sater  v.  Plank  Road  Co.  ^  Baker  v.  Young,  44  III.  43. 
1  Clarke  (Iowa)  394. 


CiiAP.  XIII.j    INSTRUCTIONS    AJBOUT   DA3IAGES.  435 

§  516.  It  is  held  that  the  measure  of  damages  in 
an  action  against  a  sheriff  for  the  tortions  seiznre  of 
a  steamboat  nnder  execution,  is  the  actual  value  of 
the  boat  as  property,  although  it  may  be  "  unriver- 
worthy  "  at  the  time  of  the  sale,  and  also  interest  on 
the  value  of  the  property  injured,  although  this  latter 
item  is  in  the  discretion  of  the  jury  alone,  and  it  is 
error  for  the  court  to  instruct  them  to  allow  interest.^^ 

§  517.  In  an  action  on  a  guaranty,  though  it  is 
error  in  terms  to  charge  that  if  the  jury  find  a  ver- 
dict for  the  plaintiff,  they  must  assess  as  damages  the 
amount  of  the  penalty  fixed  in  the  guaranty,  yet,  if 
the  plaintiff's  damages,  if  any,  must  exceed  the  pen- 
alty, the  direction  must  be  regarded  as  limiting  the 
verdict,  and  the  defendant  is  not  injured  by  the  in- 
struction, and  the  judgment  will  not  be  reversed 
thereon.^* 

§  518.  In  an  action  by  the  mate  of  a  vessel  against 
the  owners  to  recover  wages  for  services  in  navigating 
to  the  end  of  a  voyage  after  the  master's  death,  the 
jury  may  ]:)roperly  be  instructed  that  he  is  entitled  to 
recover  what  his  services  were  worth  to  the  owners, 
if  his  claim  is  only  for  the  same  wages  that  had  been 
allowed  to  the  master.^^ 

§  519.  In  a  claim,  consisting  of  debts  and  credits 
on  the  part  of  the  plaintiffs,  presented  against  an 
estate,  and  put  in  suit  against  the  executor,  the  fol- 
lowing instruction  was  held  eiToneous:  "If  the  de- 
fendant has  failed  to  prove  any  of  the  set-offs  in  his 

^3  Crow  V.  State,  use,  &c.,  ^^  Smith  v.  Curtis,  5  Allen, 
23  Ark.  685.  367. 

^4  Jones  t;.  Post,  6  Cal.  102. 


436  INSTEUCTIONS    A^QD    CHANGES.  [Part  TI. 

answer,  but  resorts  to  the  plaintiiFs'  claim  to  prove 
the  credits  he  is  entitled  to,  then  the  jury  will  take 
the  whole  of  the  plaintiffs'  claim  as  true,"  since  the 
evidence  offered  by  the  plaintiffs  was  very  slight,  and 
the  jury  would  probably  not  have  found  the  account 
proved  except  for  the  instruction.^^ 

§  520.  It  has  been  held  in  Georgia  (1866),  that  the 
judge  had  no  right  to  instruct  the  jury  not  to  con- 
sider evidence  of  the  value  of  Confederate  currency 
at  the  time  the  contract  was  made,  and  restrict  them 
to  the  value  at  the  time  the  debt  fell  due.'^ 

§  521.  A  case  of  damages  in  locating  a  railroad,  so 
as  to  destroy  the  value  of  an  easement  in  a  canal, 
arose  in  Massachusetts,  in  which  the  following  is  a 
portion  of  the  syllabus  of  the  reporter :  "  No  excep- 
tion lies  on  the  part  of  the  respondents  to  an  instruc- 
tion to  the  jury,  in  reference  to  the  damages  sustained 
by  reason  of  the  location  of  a  railroad  over  a  portion 
of  a  lot,  and  the  filling  up  of  an  adjacent  canal,  in 
which  the  owner  of  the  lot  had  a  privilege,  that  if  by 
reason  of  these  acts  the  value  of  the  land  which 
remained  was  so  increased  in  consequence  of  some 
peculiar  advantages  conferred  upon  it,  in  which  the 
other  estates  in  that  vicinity  not  situated  upon  the  canal 
did  not  participate,  that  the  remainder  of  the  land  was 
worth  as  much  as  the  entire  lot  was  before,  the  owner 
has  no  claim  for  damages,  although  the  jury  are  also 
instructed  that  the  benefit  which  is  to  be  set  off  is 
some  increased  value  which  the  estate  had  received  in 
consequence  of  its  becoming  better  adapted  to,  and 

^®  Johnson  v.    Kent,    9   Ind.  ^"  Evans  v.   Walker,   313   Ga. 

254.  117. 


Chap.  XIII.]     INSTKUCTIOJS^S   ABOUT   DAMAGES.  437 

more  valuable  for,  some  specific  purpose  than  the 
other  estates  where  the  land  had  not  been  taken,  and 
illustrations  of  such  benefits  are  given. 

"If  there  is  a  controversy  as  to  the  value  of  an 
easement  in  a  canal  in  a  city,  into  which  drains  and 
sewers  lead,  a  request  for  an  instruction  to  the  jury 
that  in  estimating  such  value,  they  should  take  into 
consideration  all  the  lawful  uses  to  which  the  canal 
has  been  subjected;  and  the  efiect  of  such  uses,  either 
in  imjoairing  the  value  of  the  canal  for  navigation,  or 
as  leading  to  its  probable  suppression  as  a  nuisance, 
is  sufficiently  complied  with  by  an  instruction  to  them 
that  they  are  to  determine  the  value  of  the  easement 
at  that  time,  having  reference  to  the  state  of  things  as 
they  then  existed,  the  sort  of  canal  it  was,  its  depth, 
width,  character,  degree  of'offensiveness,  and  all  the 
facts  and  conditions  affecting  the  quality  and  charac- 
ter of  the  easement,  and  the  land  with  which  it  was 
connected."  ^^ 

§  522.  Wliere  one  having  a  patent  right  interest  in 
a  planing  machine,  employed  the  plaintiffs  to  con- 
struct one  for  him,  but,  before  finished,  he  sold  his 
interest  in  the  machine  to  another,  and  notified  the 
plaintiffs  in  the  presence  of  the  buyer  who  assented 
to  it,  and,  when  finished,  they  delivered  the  machine 
to  the  buyer,  and  charged  it  to  him,  it  was  held  that 
the  buyer  could  only  be  held  liable  on  an  original 
promise  in  the  matter;  but  that  if  he  expressly  or 
impliedly  directed  the  plaintiffs  to  finish  the  machine, 
and  the  same  was  accordingly  completed  and  deliv- 

18  Whitman  v.  R.  K.  7  Allen,  314. 


438  INSTRUCTIONS   AND    CILVRGES.  [Pakt  II. 

ered  to  him,  he  was  hable,  and  a  subsequent  taking 
back  of  the  machine  would  not  prevent  a  recovery 
where  it  appeared  to  have  been  taken  back  merely 
for  the  purpose  of  making  a  sale  thereof  on  the 
buyer's  account,  without  intending  to  discharge  his 
liability.'* 

§  523.  As  to  set-off  in  damages,  I  quote  the  follow- 
ing syllabus  of  a  'New  York  case :  "  In  an  action  to 
recover  the  rent  of  a  store,  where  the  defendants,  who 
were  the  tenants,  had  set  up  as  a  counter-claim  dam- 
age to  their  goods,  during  their  occupation,  by  smoke 
and  soot  of  a  furnace  erected  by  the  plaintiff,  his  ser- 
vants, or  agents,  in  the  basement  of  such  premises, 
the  exclusion  of  evidence  offered  to  prove  the  items 
of  such  damage,  and  the  nature  and  extent  of  the 
injury  done  to  such  goods,  was  held  to  be  erroneous, 
the  case  having  been  sent  back  for  a  new  trial  on  a 
former  appeal,  because  of  the  exclusion  of  similar  evi- 
dence. Held  that  the  case  w  as  res  adjudicata  on  that 
question. 

"  When  a  counter-claim  is  proved  without  contra- 
diction, the  court  should  direct  the  jury  to  assess  the 
defendants'  damages,  if  requested  to  do  so,  instead  of 
leaving  any  discretion  with  them  on  the  subject.  And 
when  the  judge  instructed  the  jury,  that  as  to  the 
question  of  the  defendants'  damages,  the  testimony 
fixed  it  beyond  peradventure,  and  the  jury,  notwith- 
standing, rejected  the  counter-claim,  and  gave  the 
plaintiff  a  verdict  for  the  amount  claimed,  held  that 
such  verdict  was  not  only  against  the  evidence,  but 

19  Sloan  V.  Van  Wyck,  36  Barb.  335. 


Chap.  XIII]    IKSTRUOTIONS   ABOUT   DAMAGES.  439 

directly  against  the  charge  of  the  judge,  and  the 
cause  should  be  reversed."^'' 

§  524.  It  is  of  course  proper  to  refuse  an  instruc- 
tion charging  that  the  plaintiffs  are  not  entitled  to 
damages  on  a  ground  on  which  they  have  not  claimed 
damages.^^ 

§  525.  Wliere  a  jury  were  instructed  in  regard  to 
certain  pass-books  in  evidence,  that  the}^  "  add  up  the 
pass-books  to  ascertain  the  amount,"  this  was  held 
misleading,  since  the  jury  might  have  understood  it 
as  directing  them  that  the  books  were  of  that  char- 
acter of  evidence  which  would  exclude  all  questions 
except  the  amount  thus  footed  up.^^ 

§  526.  A  charge  in  regard  to  costs  maybe  correct; 
as,  for  example,  where,  in  an  action  for  assault  and 
battery,  the  judge  charged  the  jury  as  to  the  effect 
of  their  verdict  on  costs,  in  case  they  should  find  for 
plaintiffs,  and  refused  to  charge  that,  in  arriving  at 
the  amount  of  the  verdict  they  would  give  the  plain- 
tiff, they  had  nothing  to  do  with  the  question  of  costs, 
or  whether  or  not  their  verdict  would  entitle  him  to 
full  costs.'^'^  Indeed,  it  is  held  in  ^ew  York,  that  it 
is  the  common  experience  to  apjjrise  the  jury  of  the 
effect  of  their  verdict  upon  the  parties  in  respect  to 
the  question  of  costs;  and  the  practice  has  been 
expressly  and  repeatedly  affirmed.^^ 

But,  in  Ohio,  it  is  held  error  to  instruct  a  jury,  in 

20  Ayres  v.  O'Farrell,  4  Rob.  23  Waffle  v.  Dillenback,  39 
668.  Barb.  123. 

21  Weber  v.  Kingsland,  8  24  game  parties,  38  N.  Y. 
Bosw.  (N.  Y.)  417.  53. 

22  Hovey  v.  Thorapsou,  37  111. 
638. 


440  INSTRUCTIONS   AND   CHARGES.  Part  II. 

an  action  against  a  railroad  company  for  trespass  to 
the  persons,  that  in  a  proper  case  of  exemplary  dam- 
ages they  shonld  know  that  in  case  the  party  recover 
less  than  one  hundred  dollars,  he  cannot  recover  his 
costs  in  the  action.-^ 

In  Alabama,  where  a  charge  was  requested  to  the 
effect  that  the  plaintiffs  were  not  entitled  to  recover 
the  whole  of  the  costs  in  that  action,  which  was  strictly 
true,  it  was  nevertheless  held  erroneous  because  of 
its  tendency  to  confuse  the  jury  by  making  it  their 
duty  to  refuse  an  allowance  to  the  plaintiffs  of  a  part 
of  the  costs,  without  affording  them  any  means  of 
ascertaining  what  part  of  the  costs  should  be  allowed, 
and  what  not,  and  compelling  them  thus  to  determine 
the  point  by  a  mere  guess  in  the  dark,  so  that  it  was 
held  not  error  to  refuse  it.^^ 


CHAPTER    Xiy. 

Directing  Yerdicts. 

§  527.  It  is  a  general  principle  that  where  the  evi- 
dence offered  by  plaintiff  does  not  legally  tend  to 
support  his  claim,  as  set  forth  in  the  pleadings,  the 
court  may  properly  instruct  the  jury  to  return  a  ver- 
dict for  the  defendant;  but,  on  the  other  hand,  where 
the  evidence  does  tend  to  support  his  allegations, 
although  in  a  slight  degree,  the  jury  must  be  left  to 

25  R.  R.  V.  Bartrara,  11  Ohio  26  Miller  v.  Garrett,  35  Ala. 
St.  457.  101. 


Chap.  XIV.]  DIRECTING   VERDICTS.  441 

find  the  facts.  A  directing  instruction  may  be  in  this 
form:  "The  j)laintiff  having  failed  to  introduce  any 
evidence  to  show  any  habiUty  on  the  part  of  the  de- 
fendant, and  no  connection  of  any  kind  upon  the  part 
of  the  railroad  company  with  plaintiflf  having  been 
shown  in  any  way,  and  no  evidence  of  any  kind  in 
the  case  having  been  offered  to  show  any  liability  or 
connection  between  plaintiff  and  defendant,  the  jury 
are  instructed  to  return  a  verdict  in  favor  of  the  de- 
fendant." ^ 

But  where  there  is  any  evidence  tending  to  show  a 
right  of  recovery,  as  above  stated,  a  peremptory  in- 
struction to  the  jury  to  find  for  the  defendant  is  fatal 
error,-  because  the  question  of  the  sufficiency,  and  of 
the  credibility,  is  not  for  the  court  to  decide.^  The 
test  is  laid  down  thus:  If  the  plaintiff  has  a  case, 
were  it  not  for  the  defendant's  testimony,  a  directing 
instruction  is  erroneous.* 

§  528.  Where,  in  an  action  for  damages,  the  non- 
responsibility  of  the  defendant  for  the  injuries  com- 
plained of  was  established  by  uncontradicted  evi- 
dence, and  the  court  refused  to  instruct  the  jury  to 
find  as  in  case  of  a  nonsuit,  the  refusal  was  held 
error ,^  it  being  not  merely  the  right,  but  the  duty,  of 
the  court  to  inform  the  jury  where  there  is  no  evi- 
dence.*^ And  even  where  the  evidence  is  plainly 
insufficient,  so  that  there  need  be  no  estimate  of  suffi- 

1  Singleton  v.  Pacific  R.  R.  *  Hill  v.  Camfield,  66  Pa.  St. 
41  Mo.  469.  458. 

2  Stephens  v.  Brooks,  2  Bush.  ^  Parker  v.  Jenkins,  3  Bush, 
(Ky.)  137.  (Ky  )  587. 

3  McKown  V.  Craig,  39  Mo,  ^  Hynds  v.  Hays,  25  Ind.  31. 
156. 


442  INSTRUCTIONS    AND    CIIABGES.  [Part  II. 

ciency;  and  even  in  a  criminal  case,  where  the  jury 
determine  the  law  and  the  facts/ 

§  529.  Where  there  is  a  balance  of  testimony,  as 
where,  in  an  action  on  a  promissory  note,  the  defend- 
ant denied  the  execution  on  oath,  and  the  plaintiff 
testified  that  he  had  taken  the  note  to  the  defendant, 
who  said  it  was  all  right,  and  he  would  pay  it,  the 
jury  may  be  instructed  h^^Dothetically  that  if  they  find 
the  evidence  equally  balanced,  they  should  find  for 
the  defendant;  and  it  is  held  that  such  an  instruction 
is  not  open  to  the  objection  that  it  tends  to  mislead 
the  jury  into  the  belief  that  they  are  to  find  for  the 
defendant  if  an  equal  number  of  witnesses  have  testi- 
fied on  each  side,  since  an  equal  balance  of  evidence, 
they  would  know,  does  not  refer  to  the  number  of 
witnesses,  but  to  the  equal  weight  and  credit  of  testi- 
mony, whether  written  or  verbal.^ 

§  530.  A  plaintiff  whose  evidence  fails  may  pre- 
serve his  rights  by  taking  a  nonsuit,^  which  leaves 
him  free  to  bring  a  suit  again  under  better  prepara- 
tion, while  a  verdict  would  create  the  bar  of  res  adju- 
dicata. 

§  531.  There  is  a  distinction  between  direct  and 
circumstantial  evidence,  thus  explained  by  the  Su- 
preme Court  of  North  Carolina:  Wliere  evidence  is 
direct,  leaving  nothing  to  inference,  and,  if  believed, 
is  the  same  thing  as  the  fact  sought  to  be  proved,  the 
judge  is  at  liberty  to  instruct  the  jury  that  if  they 
believe  the  witness  they  may  find  for  the  plaintiff  or 

7  State  v.Danbert.  42  Mo. 242.  ^  R.    R.    v.   Moore,    3T    Mo 

S'Bridenthal   v.  Davidson,  61       341. 
111.  460. 


Chap.  XIV.]  DIRECTING   VERDICTS.  443 

for  the  defendant.  But  this  is  not  allowed  where  the 
evidence  is  ch'cumstantial,  or  w^here  the  evidence 
offered  on  the  other  side  tends  to  explain  it,  or  to 
rebut  the  inferences  sought  to  be  drawn  from  it,  or  to 
contradict  the  witness.^'' 

§  532.  At  the  close  of  a  plaintiff's  case,  a  defendant 
has  the  right  to  ask  instructions  on  the  evidence,  and 
have  the  case  submitted  to  the  jury,  where  the  evi- 
dence is  insufficient  in  law,  on  directive  instructions.^^ 

§  533.  It  is  error  for  the  court,  when  the  evidence 
is  all  in,  to  inform  the  jury  that,  in  any  event,  the 
plaintiff  is  not  entitled  to  recover,  and  if  the  issue 
were  found  for  him  the  court  would  set  aside  the  ver- 
dict; and  then  add,  "The  jury  can  take  the  issues 
and  pass  upon  them,  and  say  how  the  matter  was." 
On  this  the  Supreme  Court  remarked,  "  This  manner 
of  submitting  the  issues  was  calculated  to  throw  the 
jury  off  their  guard,  and  to  prejudice  the  rights  of 
the  plaintiff.  Why  consider  the  evidence  with  that 
care  and  attention  which  properly  belong  to  all  jury 
trials,  if  their  findings  are  to  have  no  weight  with  the 
court,  but  are  to  be  set  aside  in  any  event?  " '~ 

§  534.  Where  it  was  necessary,  under  anti-liquor 
laws,  to  prove  the  knowledge  of  the  law  on  the  part 
of  a  firm  residing  in  another  state,  and  also  the  intent 
to  enable  the  purchaser  of  liquors  from  them  to  violate 
the  provisions  of  the  law,  and  the  jury  were  instructed 
that  a  second  draft  was  for  a  contract  made  in  an- 
other state,  and  that  defendant  w^as  required  to  show 

10  Gaither  v.  Ferebee,  Win-  Mo.  216  ;  Smith  v.  R.  R.  3t  Mo. 
ston  (1)310.  287. 

"  Clark's  Adm'x  v.  R.  R.  36         ^^DnU  v. Young,  70  N.  0.  452. 


444  instructio:n^s  a^sd  charges.         [Partii. 

that  the  sellers  had  knowledge  of  the  law,  and  that 
there  was  no  evidence  on  this  point,  and  directed 
them  to  find  for  the  plaintiff,  it  was  held  erroneous,  in 
not  setting  forth  also  the  necessity  of  proving  the 
intent.  But  as  this  was  an  error  to  the  prejudice  of 
the  plaintiif,  the  defendant  could  not  be  heard,  to 
complain  of  the  omission. ^^ 

§  535.  In  an  action  against  a  railroad  company  for 
killing  animals  on  the  track,  and  it  was  proved  that 
the  engineer  had  failed  to  fulfil  his  obligations  pre- 
scribed by  the  statute,  and  the  court  directed  a  verdict 
for  the  plaintiff,  it  was  held  erroneous,  because  there 
was  no  testimony  that  the  accident  complained  of  was 
occasioned  by  the  engineer's  omission  of  duty,  and 
inferences  of  fact  must  be  left  to  the  jury,  the  court 
having  no  right  to  draw  such  conclusions,  unless  the 
case  is  within  the  operation  of  some  legal  pre- 
sumption.^* 

§  536.  A  proper  test  as  to  directing  a  verdict  is  held 
thus  in  Wisconsin :  "  It  is  always  proper  to  withdi-aw 
a  question  from  the  consideration  of  a  jury,  where,  in 
case  of  an  adverse  verdict  to  the  view  of  the  court, 
it  would  be  proper  to  set  the  verdict  aside  as  against 
the  weight  of  evidence.  Where  the  defendant,  claim- 
ing to  be  the  owner  of  a  note  made  by  the  plaintiff  to 
a  third  person,  set  up  a  counter-claim  for  the  balance 
due  thereon,  his  own  evidence  showed  that,  previous 
to  the  commencement  of  the  action,  an  agreement 
was  entered  into  between  him  and  the  holder  of  the 
note,  that  the  latter  should  ascertain  the  amount  of  a 

13  Bank  v.  Curren,  36   Iowa,  ^^  R.    R.    V.    Bibb,    37    Ala. 

558.  102. 


Chap.  XIV.]  DIRECTLN^G   VERDICTS.  445 

payment  made  upon  it,  but  never  indorsed,  and  should 
indorse  the  same,  and  then  transfer  the  note  to  the 
defendant,  who  was  to  execute  his  own  note  for  an 
amount  due  from  him  on  account  to  said  holder, 
together  with  the  amount  due  on  said  note  after 
deducting  the  payment  so  to  be  indorsed;  that  the 
indorsement  was  made  on  the  same  day  the  summons 
in  the  pending  action  was  served,  and  that  the  note, 
so  indorsed,  was  not  delivered  to  the  defendant  until 
several  days  afterwards.  Held,  that  the  court  did  not 
err  in  instructing  the  jury  that  there  was  no  evidence 
from  which  they  could  find  that  the  defendant  was 
owner  of  the  note  when  the  action  was  commenced, 
and  withdrawing  that  question  from  their  considera- 
tion, for  the  title  to  the  note  did  not  pass  until  deliv- 
ery, or,  at  least,  until  the  amount  to  be  indorsed  was 
ascertained,  and  the  indorsement  made."  ^^ 

§  537.  A  charge  that  "  if  the  evidence  does  not 
affirmatively  show  that  the  subscribing  witnesses  to  a 
will  signed  it  in  the  presence  of  the  testator,  but  only 
leaves  the  matter  in  doubt  as  to  whether  they  did  so 
attest  it,  then  the  jury  should  find  against  the  will," 
was  held  to  have  been  properly  refused;  for,  although 
the  facts  of  the  attestation  might  not  affirmatively 
appear,  nor  exclude  all  doubt,  yet  the  proof  was  a 
proper  consideration  for  the  jury;  and,  in  such  a 
case,  it  cannot  be  asserted  as  matter  of  law  that  the 
jury  must  find  against  the  execution  of  the  will."' 

§  538.  In  Pennsylvania,  where  a  jury  is  called  in 
cases  of  specific  performance,  it  is  held  that  where 

15  Dryden  v.  Britton,  19  Wis.  i*5  pool's  Heirs  v.  Pool's  Ex- 

22.  ec'r,  35  Ala.  18. 


446  INSTRUCTIONS   AND    CHANGES.  [Part  II. 

the  facts  are  not  such,  in  the  opinion  of  the  chancellor, 
as  to  justiiy  him  in  decreeing  a  specific  execution,  he 
should  give  a  hinding-  instruction  to  that  effect,  and 
withdraw  the  case  froni  them;  but  if  the  case  is  suffi- 
cient on  the  testimony,  the  jmy  are  to  be  so  instructed, 
and  the  truth  of  the  facts  is  to  be  left  to  them,  as  the 
jur}^  are  not  charged  with  administering  the  equities 
of  a  case  further  than  to  find  the  facts  upon  which 
they  arise. '^ 

§  539.  AYhere,  on  the  joint  trial  of  two  prisoners  for 
murder,  the  judge  directed  the  acquittal  of  one,  re- 
marking, "  I  shall  direct  an  acquittal  as  to  him, 
although  I  think  it  not  improbable  that  he  was  there," 
the  other  prisoner,  it  was  held,  had  no  right  to  com- 
plain, and  was  not  entitled  to  a  new  trial,  not  being 
in  any  manner  prejudiced  by  such  remark.'^ 

§  540.  The  whole  matter  is  summed  up  by  the  Su- 
preme Court  of  the  United  States  thus:  "Correct 
instructions,  if  applicable  to  the  case,  the  court,  as  a 
general  rule,  is  required  to  give,  unless  the  same  are, 
in  substance  and  effect,  embodied  in  those  previously 
given  by  the  court  to  the  jury;  but  the  court  is  never 
required  by  law  to  give  an  instruction  to  the  jury 
which  is  not  applicable  to  the  case,  even  though  it  be 
correct  as  an  abstract  principle,  or  rule  of  law;  and 
it  may  be  added,  that  no  prayer  for  instruction, 
whether  presented  by  the  plaintiff  or  the  defendant,  can 
be  regarded  as  applicable  to  the  case,when  it  is  wholly 
unsupported  by  the  evidence  introduced  to  the  jury. 
Competent  evidence  may  be  written  or  oral,  direct  or 

1'  Piersol  v.  Neill,  63  Pa.  St.  ^^  State  v.   Martin,  TO  N.  C. 

426.  628. 


Chap.  XIV.]  DIRECTING   VERDICTS.  447 

circumstantial ;  but  when  there  is  no  legal  evidence  of 
any  kind  to  support  the  theory  of  fact  embodied  in  a 
pi-ayer  for  instruction,  whether  pi-esented  by  the  plain- 
tiff or  the  defendant,  the  instruction  should  always  be 
refused;  and  such  a  ruling  can  never  become  a  good 
cause  for  reversing  the  judgment.  It  is  clearly  error 
in  a  court,  said  Taney,  C.  J.,  to  charge  a  jury  upon  a 
supposed  or  conjectural  state  of  facts,  of  which  no 
evidence  has  been  offered,  as  the  instruction  presup- 
poses that  there  is  some  evidence  before  the  jury  which 
they  may  think  sufficient  to  establish  the  fact  hypo- 
thetically  assumed  in  that  way  by  the  court;  and  if 
there  is  no  evidence  which  they  have  a  right  to  con- 
sider, then  the  charge  does  not  aid  them  in  coming  to 
a  correct  conclusion,  but  its  tendency  is  to  embarrass 
and  mislead  them,  as  it  may  induce  them  to  indulge 
in  conjectures,  instead  of  weighing  the  testimony. 
When  a  prayer  for  instruction  is  presented  to  the 
court,  and  there  is  no  evidence  upon  the  subject  in 
the  case  for  the  consideration  of  the  jury,  it  ought 
always  to  be  withheld ;  and  if  it  is  given  under  such 
circumstances,  it  will,  as  a  general  rule,  be  regarded 
as  error  in  the  court,  for  the  reason  that  its  tendency 
may  be,  and  often  is,  to  mislead  the  jury,  by  with- 
drawing their  attention  from  the  legitimate  points  of 
inquiry  involved  in  the  issue.  Bills  of  exception 
ought  to  state  that  evidence  was  offered  of  the  facts 
upon  which  the  opinion  of  the  court  is  prayed,  else 
the  court  is  under  no  obligation  to  give  the  instruc- 
tion. Though  the  judge  may  refuse  to  declare  the 
law  to  the  jury  on  a  hypothetical  question,  yet,  if  he 
gives  the  instruction,  and  it  is  erroneous,  it  is  the 


448  INSTRUCTION'S   AND    CHARGES.  [Part  II. 

proper  subject  of  revision.  But  the  true  rule,  if  there 
be  no  evidence  to  support  the  theory  of  fact  assumed 
in  the  prayer,  is  to  reject  it,  as  it  is  error  to  leave  a 
question  to  a  jury  in  respect  to  which  there  is  no  evi- 
dence." '^ 

We  perceive  that  directing  a  verdict  is  a  necessary 
corollary  to  the  general  doctrine  that  instructions 
must  be  based  on  the  evidence;  and  so  where  there 
is  no  evidence,  no  instruction  is  available  except  that 
which  directs  the  proper  verdict,  being  nothing  left 
but  a  question  of  law  as  to  the  right  of  recovery  or 
defence.  (See  Chapter  IX.,  where  the  subject  of 
abstract  and  inapplicable  instructions  is  sx^ecially 
treated.) 


CHAPTER   XY. 

Instructions.  ESPECIALLY  adapted  to  Criminal 

Cases. 

§  541.  There  has  been,  in  the  course  of  progres- 
sive civilization,  a  very  great  transformation  in  the 
principles  and  modes  of  enforcing  the  laws  against 
crime.  Formerly  an  accusation  was  almost  equivalent 
to  a  conviction,  and  especially  as  even,  until  a  compar- 
atively late  period  in  England,  an  accused  was  not  al- 
lowed a  trial  in  the  proper  sense  of  the  word.  He  could 
not  have  an  appearance  by  counsel,  nor  a  compulsory 
process  for  witnesses,  nor  the  privilege  of  cross-ex- 
amining the  witnesses  brought  against  him;  nay,  he 

19  Ins.  Co.  V.  Baring,  20  Wall.  161. 


Chap.  XV.]     IN^STRUCTIONS    IN    CRIMINAL    CASES.  449 

might  even  be  condemned  in  his  absence.  But  now 
the  presumption  of  law  is  in  favor  of  his  innocence ; 
he  is  entitled  to  counsel  and  witnesses,  and  to  all  the 
compulsory  process  of  the  court  to  enforce  attendance, 
and  he  must  be  proven  guilty  to  a  moral  certainty  in 
order  to  justify  a  conviction.  Even  his  confessions 
are  not  construed  strongly  against  him,  but  judged 
of  as  any  other  evidence.  They  must  be  taken  alto- 
gether, and  not  piecemeal.  If  part  of  a  confession 
going  to  his  acquittal  is  not  disproved,  the  jury  can- 
not be  allowed  arbitrarily  to  reject  it,  and  go  upon  the 
portion  which  tends  to  criminate  him,  although  if  they 
find  sufficient  grounds  for  so  doing,  they  may  believe 
the  portion  which  is  against  him,  and  reject  the  modi- 
fying clauses  or  passages  offered  in  excuse.  They  are 
simply  to  judge  of  it  as  of  any  other  evidence,  not 
arbitrarily,  but  according  to  established  rules.' 

And  further,  it  is  not  enough  that  the  coiu't  state 
partially  the  law  of  the  case  in  a  criminal  proceeding. 
The  accused  is  entitled  to  such  a  charge  as  the  facts 
demand,  and  can  enforce  this  right  by  appeal.  And 
it  is  always  to  be  presumed  that  a  jury  is  capable  of 
understanding  a  whole  charge  in  its  connected  rela- 
tions and  application  to  the  facts  of  the  case.^ 

§  542.  It  may  be  inquired  if  juries  are  judges  of 
the  law  and  fact  in  a  criminal  case,  to  what  purpose 
is  the  instruction  of  the  court,  which  can  have  no 
binding  effect  in  law,  since  herein  counsel  have  the 
same  right  to  argue  a  question  of  law  as  a  question 

1  Crawford  v.  State,  4  Cald.  2  People  v.  Bagnell,  31  Cal. 
(Tenn.)  190.  412. 

29 


450  INSTRUCTIONS    AND    CHARGES.  [Part  II. 

of  fact?  and  the  court  cannot  prohibit  it,  although 
having  the  power  to  regulate  argument  by  reasonable 
rules;  and  the  jury  may  even  judge  of  the  constitu- 
tion as  well  as  statute  law.  To  this  the  Supreme 
Court  of  Indiana  answers,  that  the  court  instructs  the 
jury,  in  criminal  cases,  not  to  bind  their  consciences, 
but  to  inform  their  judgments;  and  the  jury  are  not 
in  duty  bound  to  adopt  the  judge's  opinion  as  their 
own.' 

§  543.  And  in  Illinois,  the  rule  as  to  criminal  cases 
is  laid  down  thus,  as  stated  in  the  syllabus  of  a  re- 
ported case :  "  The  rule  that  an  appellate  court  will 
not  interfere  to  set  aside  a  verdict  unless  it  is  palpably 
against  the  evidence,  obtains  in  the  largest  sense  in 
civil  cases;  but  it  is  not  applied  to  the  same  extent 
in  criminal  cases,  especially  where  life  is  at  stake. 
Hence,  in  a  capital  case,  when  the  court,  on  consid- 
ering the  whole  record,  shall  be  satisfied  justice  has 
not  been  done,  the  case  will  be  sent  to  another  jury, 
and  it  need  not  appear  that  the  first  jury  acted  rashly 
by  deciding  against  the  evidence. 

"  While  it  is  true  that  the  jury,  in  the  full  sense, 
are,  in  a  criminal  case,  judges  both  of  the  fact  and  of 
the  law,  and  may  be  so  instructed  by  the  court,  they 
should  then  be  left  to  their  own  responsibility  alone 
to  decide  on  the  guilt  or  innocence  of  the  prisoner, 
giving  to  him  the  benefit  of  all  reasonable  doubts, 
without  any  reference  to  the  possible  future  action 
of  the  Supreme  Court.  Hence  an  instruction  which 
correctly  states  the  right  of  the  jury  to  judge  of  the 

3  Lynch  v.  State,  9  Ind.  541. 


Chap.  XV.]     INSTRUCTIONS    IN   CRIMINAL    CASES.  451 

law  and  the  fact,  and  then  concludes  with  the  state- 
ment, that  if  they  '  disregard  the  instructions  of  the 
court,  and  mistake  the  law  to  the  prejudice  of  the 
prisoner,  it  would  be  the  duty  of  the  court  to  set  aside 
the  verdict,'  is  erroneous. 

"In  a  capital  case,  where  the  instructions  given  by 
the  court  below  do  not  announce  correct  legal  princi- 
ples, or,  being  correct,  are  inapplicable  to  the  case, 
though  no  exceptions  are  taken  to  them,  the  appellate 
court,  in  the  face  of  the  record,  will  not  pronounce 
sentence  of  death  upon  the  prisoner,  but  will  award  a 
new  trial."  * 

§  544.  One  of  the  most  common  points  on  which 
instructions  are  called  for,  is  in  regard  to  the  degrees 
of  crimes  of  the  same  class  or  character;  it  being  the 
general  rule,  that  a  lower  degree  of  the  same  crime, 
set  forth  in  the  indictment,  may  be  found,  where  the 
evidence  Avill  justify  it,  and  will  not  justify  the  higher 
conviction. 

Wliere  circumstances  of  cruelty  towards  a  foster- 
child  were  so  often  repeated  and  long  continued  as  to 
"  manifest  a  heart  totally  regardless  of  bocial  duty, 
and  fatally  bent  on  mischief,"  and  death  ensued,  —  the 
idea  of  passion  being  excluded,  and  that  of  malice 
only  possible,  —  it  was  held  proper  to  refuse  a  charge 
relating  to  manslaughter,  as  inapplicable.^  In  Texas, 
it  is  held  that,  where  the  homicide  may  have  been 
murder  in  the  second  degree,  or  manslaughter,  the 
court  should,  without  motion,  explain  to  the  jury  the 
law  which  will  reduce  the  offence  to  manslaughter.* 

^  Falk  V.  People,  42  111.  331.  ^  Maria    (a    freed  woman)    v. 

^  State  V.  Harris,  63  N.  C.  5,     State,  28  Tex.  698. 


4:52  ESrSTRUCTIONS   AND    CHAKGES.  [Paut  II. 

But  a  charge  that  if  "  the  defendant  did  the  stabbing 
under  the  influence  of  sudden  passion,  arising  from 
the  deceased  beating  her  child,  she  would  only  be 
guilty  of  manslaughter,"  was  held  erroneous  in  not 
defining  the  extent  and  effect  of  the  passion  by  which 
the  offence  might  be  reduced  to  manslaughter/  And 
this :  "  In  murder  in  the  second  degree,  the  design  to 
kill  is  conceived  and  executed  in  a  transport  of  pas- 
sion, which  renders  the  mind  incapable  of  cool  reflec- 
tion, and  deprives  it  of  the  power  to  weigh  well  the 
nature  and  consequences  of  the  act,"  because  it  did 
not  properly  define  the  distinction  between  murder  in 
the  second  degree,  and  manslaughter/ 

In  Georgia,  an  instruction  concerning  degrees  in  a 
capital  case  need  not  be  given,  unless  called  for  by 
the  state  of  the  evidence.^  In  'New  York,  it  seems,  it 
should  be  given  always/ 

In  Vermont,  it  is  held  that  it  is  the  duty  of  the 
courts,  in  trials  for  murder,  first,  to  regard  the  accused 
as  innocent,  until  he  is  proved  guilty;  and,  secondly, 
after  he  is  shown  to  have  committed  a  homicide,  to 
look  for  every  excuse  which  may  reduce  the  guilt  to 
the  lowest  point  consistent  with  the  facts  proved."^ 

§  545.  Where  the  court  had  properly  instructed  the 
jury  as  to  the  character  of  the  doubt  that  should  ac- 
quit, and  as  to  what  would  reduce  the  homicide  to  a 
lower  degree,  and  the  elements  of  each  degree,  and 
then  charged  that,  "  if  they  were   satisfied  from  the 

■^  Maria   (a    freedwoman)    v.         ^  Fitzgerald  v.  State,  31  N,  Y. 

State,  28  Tex.  698.  413. 

8  Washington  v.  State,  36  Ga.         ^^  State  v.  McDonnell,  32  Vt. 

222.  492. 


Chap.  XV.]     INSTRUCTIONS    IN    CRIMINAL    CASES.  453 

proof,  that  the  accused  was  guilty  of  murder,  they 
should  shuply  say  so;  but  if  they  believed  otherwise, 
or  were  not  satisfied,  beyond  a  reasonable  doubt,  that 
she  was  guilty  of  murder  in  the  first  degree,  then  they 
should  find  her  guilty  of  murder  in  the  second  degree, 
and  proceed  to  assign  the  penalty,"  it  was  held  that 
the  instruction  was  not  misleading,  by  inducing  the 
belief  that  they  were  bound  to  find  the  prisoner  guilty 
in  any  event  of  murder  in  the  second  degree,  if  failing 
on  the  first  degree  to  convict,  or  that  the  doubts  to 
the  benefit  of  which  the  prisoner  was  entitled  should 
be  applied  with  less  force  to  the  lower  than  to  the 
higher  degree.'^ 

§  546.  In  Kentucky,  it  is  held  that  to  leave  to  the 
jury  to  decide,  without  an  instruction  defining  it,  what 
constitutes  legal  jDrovocation  to  reduce  the  offence 
from  murder  to  manslaughter,  is  erroneous.'^  And 
so,  in  California,  if  the  court  charges  the  jury,  on  a 
trial  for  murder,  that  they  are  to  determine  whether 
the  killing  was  "  unlawfully  "  done  by  the  prisoner,  it 
should  define  the  meaning  of  the  word  "  unlawfully  " 
in  the  connection  in  which  it  is  used.^^ 

§  547.  The  court,  it  is  held  in  Missouri,  may  direct 
a  verdict  of  conviction  where  the  evidence  warrants 
it,  this  being  regarded  as  no  invasion  of  the  province 
of  the  jury,  nor  even  a  comment  on  the  evidence.^* 
But  if  the  judge  charges  that  the  crime  is  murder  or 
nothing,  and  conviction  follows,  the  case  will  be  re- 

"  Monroe  v.   State,  23   Tex.  ^3  People  v.  Byrnes,  30  Cal. 

210.  206. 

12  Payne  v.    Commonwealth,  ^^  State    v.    Schoenwald,    31 

1  Mot.  370.  Mo.  147. 


454  IN^STEUCTIONS    AXD    CHARGES.  [Paet  II. 

versed  on  error,  if  there  is  any  view  of  the  testimony 
which,  if  true,  would  reduce  the  offence  to  man- 
slaughter.'^ And  the  court  may  properly  (hi  Georgia) 
express  an  opinion  as  to  the  grade  of  offence,  so  it  is 
not  done  in  the  way  of  direction,  and  the  omission  or 
refusal  of  the  grade  of  homicide,  not  authorized  by 
the  pleadings  and  proof,  is  not  error.'®  Xor  is  it  in 
Texas.'^  ISTor  in  Missouri,  when  the  circumstances 
show,  beyond  all  question,  the  higher  degree.'^ 

§  548.  Care  must  be  taken,  however,  not  to  blend 
distinct  offences  in  assigning  degrees.  Thus,  if  an 
indictment  charges  a  burglary,  mixed  with  a  larceny, 
the  larceny  is  no  part  of  the  burglary,  and  not  in- 
cluded in  it,  as  manslaughter  in  murder.  !N^or  are 
they  interchangeable  under  the  indictment;  so  that, 
where  a  case  of  the  kind  is  conducted  upon  the  the- 
ory that  the  prisoner  is  on  trial  for  burglary  alone; 
the  court  cannot,  after  the  case  is  submitted  and  the 
jury  have  retired,  change  the  issue  by  instructing  the 
jury  that  they  may  find  the  prisoner  guilty  of  grand 
larceny.'^  And  thus  where,  on  an  indictment  for 
murder,  the  verdict  was,  that  the  prisoner  was  guilty 
of  an  assault  and  battery,  and  that  he  be  fined,  &:c., 
the  verdict  was  held  a  nullity,  and  equivalent  to  a 
verdict  of  acquittal. -° 

§  549.  "Where  a  jury,  unable  to  agree,  returned  into 
court  for  further  instructions,  and  were  charged  that, 
if  they  believed  the  witnesses,  the  case  was  clearly 

^  State  V.  Kirkland,  14  Rich.  ^^  State  v.  Byrne.  24  Mo.  151 ; 

(S.  C.)  230.  State  v.  Phillips,  ibid.  489. 

16  Choice  V.  State,  31  Ga.  424.  ^^  People  v.  Garnett,  29  Cal. 

1'  O'Connell  u.  State,  18  Tex.  622. 

344.  20  Wright  V.  State,  7  Ind.  324. 


Chap.  XV.]     LNTSTIIUCTIONS   IN^    CRIMrN^AI.    CASES.  455 

within  one  of  the  degrees  of  manslaughter,  and  it 
was  for  the  jury  to  say  which  degree,  this  further 
charge  was  held  erroneous,  as  withdrawing  from  them 
questions  of  fact.^^ 

If,  however,  a  jury  return  with  the  general  verdict 
of  guilty,  they  may  be  directed  to  return  and  find  in 
what  degree. ^^ 

§  550.  Where  a  charge  relating  to  self-defence  was 
given  in  these  terms,  "  If  a  person  kill  another  in  his 
defence,  it  must  appear  that  the  danger  was  so  urgent 
and  pressing  at  the  time  of  the  killing,  that,  in  order 
to  save  his  own  life,  the  killing  of  the  other  was  ab- 
solutely necessary;  and  it  must  appear,  also,  that  the 
person  killed  was  the  assailant,  or  that  the  slayer  had 
really  and  in  good  faith  endeavored  to  decline  any 
further  struggle  before  the  mortal  blow  was  given," 
it  was  held  correct.^^  But  where  the  instruction  was 
in  these  terms,  "If  the  j^rj  believe,  from  the  evi- 
dence, that  the  defendant  killed  the  deceased  when 
there  was  reasonable  apprehension  on  his  pai't  that 
the  deceased  was  about  to  inflict  upon  him  great  bod- 
ily harm,  then  you  should  acquit  the  defendant,"  it 
was  held  to  have  been  properly  refused  by  the  court 
below.  And  this,  given  in  its  stead,  was  held  as 
favorable  as  would  be  proper  for  the  defendant, 
namely:  If  one  person  unlawfully  attacks  another, 
the  person  so  attacked  may  repel  force  by  force.  He 
may  use  as  much  force  as  he  may  reasonably  think  is 
necessary  to  repel  the  attack;  and  if  the  party  be  in 

^^  Pfomer  i    People,  Parker's  ^  Hinch    v.    State,     25     Ga. 

C.  R.  (N.  Y.)  558.  "^Ol. 

22  People  V.  Bonney,  19  Cal. 
427. 


4:56  IlfSTRUCTIONS   AND    CHAKGES.  [Paut  II. 

imminent  danger  of  life,  or  of  receiving  considerable 
bodily  harm,  or  if  the  party  may  reasonably  believe, 
under  the  circumstances,  that  he  cannot  avoid  danger 
of  life,  or  great  personal  harm,  in  any  other  way,  in 
such  case  he  may  lawfully  take  the  life  of  his  assail- 
ant. In  other  words,  a-  man  may  lawfully  defend 
himself,  and  return  blow  for  blow;  but  he  cannot  law- 
fully do  more  than  he  may  reasonably  think  is  neces- 
sary for  his  own  defence.^* 

And  in  another  case  in  the  same  state,  it  was  held 
error  to  charge  the  jury,  without  qualification,  that  if 
the  prisoner  "  made  an  unlawful  attack,  or  got  into  a 
fight  with  the  deceased,  upon  a  sudden  heat,  and  slew 
him  in  the  controversy,  he  would  be  guilty  of  man- 
slaughter, at  any  rate;  because,  even  under  such  cir- 
cumstances, the  defendant  would  be  entitled  to  the 
benefit  of  any  retreat,  flight,  or  withdi-awal  from  the 
contest  which  he  might  in  good  faith  have  made,  or 
attempted  to  make,  although  he  was  the  aggressor  in 
the  first  instance."  ^^ 

A  case  arose  in  ^ew  York,  for  the  history  of  which 
I  avail  myself  of  the  very  full  syllabus  of  the  re- 
porter. "  The  provision  of  the  Revised  Statutes  rela- 
tive to  justifiable  homicide,  as  justly  interpreted  in 
the  case  of  Shorter  v.  People,  2  N.  Y.  R.  193,  is,  that 
one  who  is  without  fault  himself,  when  attacked  by 
another,  may  kill  his  assailant,  if  the  circumstances 
be  such  as  to  furnish  reasonable  ground  for  appre- 
hending a  design  to  take  his  life,  or  do  him  some 
great  personal  injury,  and  there  is  imminent  danger 

24  Fahnestock  v.  State,  23  Ind.  ^  Hittner  v.  State,  19  Ind. 
25t.  49. 


Chap.  XV.]      DESTRUCTIONS    IN   CRIMINAI.    CASES.  457 

that  such  design  will  be  accomplished,  although  it 
may  afterwards  turn  out  that  the  appearances  were 
false,  and  there  was  in  fact  no  such  design,  and  no 
danger  of  its  accomplishment.  On  a  trial  for  murder, 
the  jury  were  told  that  they  were  to  find  the  prisoner 
guilty  beyond  a  reasonable  doubt;  that  the  question 
for  them  to  meet  (the  killing  having  been  established 
beyond  controversy)  was,  whether  it  was  a  justifiable 
homicide ;  and  if  they  so  found,  their  verdict  must  be 
one  of  acquittal;  that  if  the  prisoner  had  reason  to 
believe  that  the  deceased  meant  to  take  his  life,  or 
commit  some  great  violence  upon  him,  he  had  a  right 
to  resort  to  violence,  and  even  to  take  life ;  that  they 
were  to  inquire  whether  the  circumstances,  conduct, 
and  acts  of  the  deceased  were  such  as  fairly  and  rea- 
sonably to  induce  such  belief;  and  if  they  were,  that 
the  prisoner  was  justified  in  acting  on  those  appear- 
ances, whether  they  were  real  or  feigned;  that  the 
inquiry  was,  whether  the  jury  were  satisfied  that  the 
prisoner,  when  he  fired  the  gun,  had  reason  to  believe, 
under  the  circumstances  then  transpiring  before  him, 
that  the  deceased  had  a  revolver,  and  was  going  to 
shoot  him.  Held  that  the  charge  presented  to  the 
jury  the  rule  which  justifies  the  taking  of  human  life 
in  self-defence  in  the  most  favorable  aspect  for  the 
prisoner,  and  gave  him  the  full  benefit  of  the  rule 
prescribed  by  the  statute,  as  interpreted  by  the  courts. 
"  The  judge  was  requested  to  charge,  that  if  the 
prisoner  did  really  and  in  good  faith  apprehend  such 
design  and  danger  as  above  stated,  then  the  jury 
should  acquit,  though  the  fact  turned  out  to  be  that 
the  prisoner  was  mistaken,  and  that  no  such  design 


4:58  INSTRUCTIONS    A:ND    charges.  [Part  II. 

or  danger  did  in  truth  exist.  The  judge  refused  to 
charge  in  the  form  requested,  *  that  if  the  prisoner  did 
really  and  in  good  faith  apprehend,'  &c.,  remarking 
that  that  turned  entirely  upon  the  operation  of  the 
prisoner's  own  mind,  without  regard  to  whether  he 
had  reason  thus  to  believe.  Held  that  the  introduc- 
tion or  omission  of  the  words  objected  to  by  the  judge 
did  not  really  vary  the  legal  proposition  which  was 
clearly  put  in  the  charge,  and  substantially  repeated 
in  the  language  of  the  judge  in  responding  to  the 
request,  and  that  such  refusal  to  charge  was  not  a 
ground  of  error. 

"  The  judge  was  also  requested  to  charge  the  jury, 
that  if  they  believed  the  prisoner  was  a  private  sol- 
dier, and  saw  his  superior  officer  unlawfully  resisted  in 
the  performance  of  his  duty,  and  believed  that  he  was 
ordered  to  fire,  and  did  so  in  obedience  to  what  he 
supposed  a  lawful  command,  then  they  should  acquit. 
This  was  declined.  Held  that,  there  being  no  testi- 
mony going  to  establish  any  such  condition  of  things 
as  would  warrant  such  a  command,  even  if  the  officer 
had  power  to  give  it,  nor  evidence  to  show  that  at  the 
time  the  homicide  was  perpetrated  the  officer  was 
being  resisted  in  the  performance  of  any  duty,  the 
proposition  was  a  mere  abstraction,  unwarranted  by 
any  facts  appearing  on  the  trial ;  and  the  instruction 
was,  therefore,  properly  refused."  ~° 

§  551.  As  to  premeditation,  which  is  an  essential 
element  in  the  crime  of  murder  in  the  first  degree, 
the  court,  in  one  case,  charged,  that  if  a  design  to 

26  Patterson  v.  People,  46  Barb.  626. 


Chap.  XV.]     LN^STRUCTIONS   IN    ORENIINAL    CASES.  459 

kill  was  formed  "at  the  time  the  blow  was  struck 
with  the  knife,  it  is  a  wilful,  deliberate,  premeditated 
killing,  and,  therefore,  murder  in  the  first  degree ; " 
and  it  was  held  erroneous  because  the  design  should 
be  formed  before  the  blow  was  struck,  in  order  to  con- 
stitute murder.-''  But  the  following  was  held  a  suffi- 
cient instruction  on  that  point:  "If  there  be  sufficient 
deliberation  to  form  a  design  to  take  life,  and  to  put 
that  design  into  execution  by  destroying  life,  there  is 
sufficient  deliberation  to  constitute  murder,  no  matter 
whether  the  design  be  formed  at  the  instant  of  strik- 
ing *  the  fatal  blow,  or  whether  it  be  contemplated  for 
months."  ^^ 

§  552.  So  where  one  had  been  insulted,  and  fol- 
lowed up  the  ofiender  with  a  deadly  weapon  to  take 
revenge,  and  when  he  overtook  him,  seeing  him  put 
his  hand  to  his  side  as  if  to  draw  a  pistol,  struck  him 
down  with  a  fatal  blow  from  his  gun,  and  on  the  trial 
the  court  was  asked  to  charge  that  this  state  of  facts 
would  justify  a  verdict  of  manslaughter,  it  was  held 
properly  refused.^ 

§  553.  "Where,  under  an  indictment  for  the  murder 
of  a  wife,  the  circumstances  were  such  as  did  not  ex- 
clude the  possibility  of  suicide  by  the  deceased,  and 
the  court  charged  that  "  it  might  be  necessary  to  de- 
cide by  what  means  the  deceased  came  to  her  death, 
whether  she  had  a  motive  to  commit  suicide,  and,  if 

*  There  would  seem  to  be  a  conflict  of  authority  here. 


27  Fonts  V.   State,  4   Greene         sggtatei?.  Owen,  Phill.  (S.  0.) 
(Iowa)  500.  427. 

28  O'Brien  v.  People,  48  Barb. 
275. 


4G0  INSTRUCTIONS   AJST)    CHAHGES.  [Part  II. 

SO,  whether  it  had  been  shown  beyond  a  reasonable 
doubt  that  she  did  not  kill  herself,  or  die  from  acci- 
dental causes :  you  will  also  consider  whether  it  was 
possible  or  probable  that  she  committed  suicide,  or 
died  accidentally  by  the  means  of  which  you  believe 
she  died,"  —  it  was  held  that  this  charge,  presented 
in  its  proper  relations  and  connections,  was  not  objec- 
tionable as  having  a  tendency  to  throw  upon  the 
defendant  the  burden  of  proving  that  the  deceased 
committed  suicide,  and  that,  failing  in  this,  to 
warrant  the  infei*ence  that  he  committed  the  murder 
charged.^" 

§  554:.  It  is  held  the  duty  of  the  court  clearly  to 
instruct  the  jury  as  to  the  distinction  between  express 
and  implied  malice,  for  the  term  "  express  malice  "  is 
purely  technical ;  and  it  is  not  to  be  supposed  that  a 
jury  will  be  able  to  determine  whether  a  murder  is  of 
the  first  or  second  degree  by  being  told  that  murder 
committed  without  express  malice  is  of  the  second 
degree."'^ 

The  following  instruction  in  relation  to  malice  was 
held  correct,  and  not  liable  to  the  objection  urged  of 
confining  the  jury,  in  their  investigation  of  the  ques- 
tion of  excuse  or  provocation,  to  the  evidence  intro- 
duced by  defendant;  namely:  "If  the  act  producing 
death  be  such  as  is  ordinarily  attended  with  dangerous 
consequences,  as  by  the  use  of  a  deadly  weapon,  or 
be  committed  deliberately,  the  malice  will  be  presumed, 
unless  some  sufiicient  excuse  or  provocation  should 
be  shown;  for  the  law  infers  that  the  natural  or  pal- 
so  Wyler  v.  State,  25  Tex.  3i  Villareal  v.  State,  26  Tex. 
182.  107. 


Chap.  XV.]      IXSTKUCTIONS    IN    CRI]Nn:N^AL    CASES.  -461 

pable  effects  of  any  act  deliberately  done  were  in- 
tended by  the  agent."  ^~ 

§  555.  A  court  may  specify  particular  circum- 
stances of  illustration  in  charging  upon  the  subject 
of  malice  aforethought;  as  where  an  instruction  was 
given  that  "  a  man  shall  be  taken  to  intend  that  which 
is  the  immediate  or  necessary  consequence  of  his  acts, 
—  as  if  a  man  was  seen,  within  shooting  distance  of 
another,  to  raise  his  gun,  and  take  aim,  and  fire,  and 
the  man  falls,  the  ball  having  inflicted  a  mortal  w^ound, 
the  taking  aim  and  firing  such  a  weapon  —  one  from 
which  death  would  most  likely  ensue — would  of  itself 
be  prima  facie  evidence  that  he  intended  it;  and  it 
is  therefore  a  wilful,  deliberate,  and  premeditated  kill- 
ing." This  was  held  correct,  on  the  ground  that 
"malice  is  legitimately  inferred  from  the  weapon  used; 
and  where  the  killing  is  with  a  dangerous  weapon 
calculated  to  produce,  and  actually  jDroducing,  death, 
in  the  absence  of  proof  that  it  was  accidental  or  upon 
provocation,  the  presumption  of  law  is,  that  the  act 
was  voluntary  and  with  malice  aforethought."  "^ 

But,  in  the  same  case,  a  specified  instruction  was 
held  somewhat  misleading  and  objectionable;  namely, 
"  The  question  whether  the  act  of  killing  was  done 
with  deliberation  and  premeditation  must  depend  upon 
the  following  facts:  (1)  The  fact  that  the  defendant 
had  previously  had  a  difficulty  with  his  wife  when  he 
had  been  drinldng;  (2)  The  infliction  of  a  deadly 
wound  with  a  deadly  weapon  in  the  defendant's  pre- 
vious possession,  without  any  provocation;   (3)  The 

82  Mask  V.  State,  36  Miss.  ^  State  v.  Gillick,  1  Clarke 
11.  (Iowa)  311. 


462  EN^STEUCTIOXS   AND    CHARGES.  [Part  II. 

declaration  of  defendant,  made  to  a  witness,  that  he 
had  done  what  he  wanted;  and  (4)  The  declaration 
of  the  deceased  that  she  had  been  murdered  by  the 
defendant." 

The  court  say,  concerning  it,  "  The  question  was 
left  to  the  jury  to  decide  whether  deliberation  and 
premeditation  were  inferable  from  these  facts.  If  the 
charge  of  the  court  is  to  be  understood  as  assuming 
these  facts  to  be  proved,  we  think  the  court  erred  in 
so  assuming,  and  in  directing  the  jury  Avhat  inferences 
might  be  drawn  from  them  as  proved.  It  should  have 
been  left  to  the  jury  to  say  whether  the  facts  were 
proved.  There  would  have  been  no  error  in  directing 
them  that,  if  they  judged  such  and  such  facts  were 
proved,  they  were  at  liberty  to  draw  the  legitimate 
inferences  from  them.  It  would  have  been  preferable, 
also,  if  the  charge  had  been  so  framed  as  that  the  jury 
might  not  be  led  by  it  to  conclude  that  these  were  the 
only  facts  from  which  deliberation  and  premeditation 
by  defendant  may  be  inferred."  ^* 

§  5ijG.  Ignorance  of  the  law  is  no  excuse  for  a 
criminal  violation  thereof;  and  so  it  was  held  not 
error  to  refuse  an  instruction,  "  That  where  a  party 
is  indicted  for  a  violation  of  a  penal  statute,  it  is 
necessary  to  a  conviction  that  such  party  did  loiow- 
ingly  and  wilfully  violate  the  statute,"  —  the  principle 
being  that  every  man  is  bound  to  know  the  law.'^'' 

§  557.  Where  a  defence  of  former  acquittal  is 
raised,  it  is  error  for  the  court  to  refer  to  the  jury  the 

84  State  V.  Gillick,  1  Clarke  25  whitten  v.  State,  37  Miss. 
(Iowa)  311.  382. 


Chap.  XVI.]  CREVirN^AIi   EVIDENCE.  4G3 

question  of  the  sufficiency  of  an  indictment,  this  being 
a  question  of  law  to  be  decided  by  the  court,'''''  unless 
in  a  state  where  the  jury  are  judges  of  the  law  and 
fact,  wlien,  I  suppose,  it  would  belong  to  them. 

§  558.  Where  a  court  instructs  the  jury  as  to  the 
abstract  principle  of  the  right  of  taking  life  in  self- 
defence,  and  then  states  a  hypothetical  case  falling 
within  the  principle,  the  hypothetical  statement  is  not 
to  be  construed  as  informing  the  jury  the  right  of 
taking  life  in  self-defence  is  confined  to  the  hypothet- 
ical case  stated.'^ 


CHAPTER  Xyi. 

Croiinal  Evidence. 

§  559.  HERErs"  we  consider,  first,  the  quality,  and, 
second,  the  degi'ce  of  evidence  to  be  adduced  in  crim- 
inal causes  in  relation  to  the  instructions  thereunto 
pertaining. 

The  credibility  due  to  certain  witnesses  is  a  primary 
subject  of  attention.  And  as  to  the  statements  of  a 
prisoner  himself,  where  a  judge  charged  the  jury  in 
regard  to  a  statement  made  by  an  accused,  under  the 
Michigan  statute  of  1863,  that  "  he  did  not  think  such 
statement  would  warrant  them  in  setting  aside  unim- 
peached  sworn  evidence,"  it  was  held  erroneous,  be- 
cause, if  the  jury  believed  such  statement  to  be  true, 
against  sworn  evidence  to  the  contrary,  there  is  no 

36  People  V.  Cook,  10  Mich.  ^7  People  v.  Campbell,  30  Cal. 
168.  312. 


464  INSTRUCTIONS   AND    CHARGES.  li'Auv  11. 

arbitrary  rule  of  law  to  prevent  them  from  acting 
upon  such  belief;  and  the  jury  is  not  bound  in  any 
case  to  give  credit  to  sworn  testimony,  though  unira- 
peached,  any  further  than  they  do  in  fact  believe  it  to 
be  true.  "  There  may  be,"  the  court  remark,  "  some- 
thing in  the  demeanor  of  the  witness — his  apparent 
intelligence,  powers  of  observation,  or  memory,  or  the 
inherent  improbability  of  his  story,  or  the  peculiar 
circumstances  of  the  case,  or  the  witness's  relation  to 
it,  and  many  other  considerations  —  which  may  render 
his  evidence,  in  the  opinion  of  the  jury,  more  or  less 
imjDrobable  and  unreliable,  while  the  statement  of  the 
defendant  may  be  so  consistent  with  itself  and  with 
the  circumstances  of  the  case,  and  so  natural  and 
probable,  as  to  produce  a  conviction  of  its  truth. 
There  can  be  no  test  for  the  comparative  weight 
which  the  statement  or  the  sworn  evidence  shall  have 
with  the  jury;  but  the  greater  or  less  conviction  of 
its  truth  which  either  may,  in  fact,  produce  upon  their 
minds,  after  taking  into  consideration  the  temptation 
under  which  the  defendant  is  placed  in  making  the 
statement,  and  all  the  evidence  and  circumstances  of 
the  case."  ^ 

§  560.  But  care  must  be  taken  not  to  assume  a 
confession,  where  it  does  not  appear  in  the  evidence; 
and,  on  this  ground,  the  following  instruction,  given 
in  a  case  of  murder,  was  condemned:  "You  may  give 
to  the  defendant's  admissions  and  confessions  such 
weight  as  you  may  deem  them  entitled  to."  - 

§  561.  Evidence  making  a  mere  ground  of  conjec- 

1  Durant  v.  People,  13  Mich.  2  People  v.  Strong,     30    Cal. 

356.  157. 


Chap.  XVI. ]  CRrMIXAL    EVIDENCE.  465 

tnre  that  a  homicide  was  accidental,  amounts  to  no 
proof  at  all;  and  so  a  charge  was  held  properly 
refused,  that  "  if  the  prisoner  was  handling  the  gun 
in  a  careless  and  negligent  manner,  and  it  accidentally 
went  off,  the  killing  was  mitigated  to  manslaughter," 
where  the  only  evidence  was,  in  regard  to  this  point, 
that  the  prisoner  afterwards  said  he  had  killed  de- 
ceased, but  did  not  know  the  gun  was  loaded ;  that 
the  gun  was  out  of  order,  and  that  therefore  it  would 
not  stand  at  half  cock."' 

§  562.  It  has  been  held  erroneous  to  charge,  as  to 
the  omission  of  a  prisoner  to  make  a  statement  when 
he  has  opportunity.  So,  where  the  instruction  was, 
that  "Where  all  the  circumstances  proved  raise  a 
strong  presumption  of  the  guilt  of  the  accused,  his 
failure  to  offer  any  explanation  when  it  is  in  his 
power  to  do  so,  tends  to  confirm  the  presumption  of 
his  guilt,"  it  was  condemned.*  And  so  it  is  error  to 
allow  the  omission  of  an  accused  to  call  his  wife  to 
testify  on  his  behalf,  to  be  lu'ged  upon  the  jury  as  a 
circumstance  tending  to  prove  guilt.  The  privilege 
of  calling  her  or  not,  at  his  option,  would  be  done 
away  with,  if  any  inference  of  guilt  were  thus  to  be 
permitted,  and  it  was  not  the  design  of  the  law  allow- 
ing it  to  interfere  with  the  harmony  and  confidence 
of  the  marital  relation.^ 

§  563.  Where  the  jury  were  instructed  that  the 
burden  of  proof  was  on  the  state  to  prove  defendant's 
guilt,  and  he  must  be  presumed  innocent  until  con- 

^  State   V.    Haywood,    Phill.  ^  Knowles  v.  People,  15  Mich. 

(N.  C.)  376.  409. 

4  Doan  V.  State,  26  Ind.  495. 

30 


466  INSTEUCTIONS   AND    CHAHGES.  [Part  II. 

chisively  proved  guilty,  it  was  held  not  error  to  refuse 
to  charge,  in  so  many  words,  that  the  burden  of  proof 
did  not  shift,  during  the  trial,  to  the  prisoner.^ 

§  564.  In  relation  to  circumstantial  evidence,  it  is 
proper  to  instruct  that  guilt  may  as  well  be  proved 
thereby  as  by  positive  evidence;  and  also  that  there 
is  nothing  legally  or  morally  wrong  for  persons  to  lay 
a  trap  or  conspire  with  others  to  detect  a  culprit,  this 
having  nothing  to  do  with  the  guilt  of  an  accused/ 
The  rule  as  to  the  effect  of  circumstantial  evidence  is, 
that  if  it  is  not  only  consistent  with  the  guilt  of  the 
prisoner,  but  inconsistent  with  any  other  rational 
conclusion,  the  law  makes  it  the  duty  of  the  jury  to 
convict,  notwithstanding  such  evidence  may  not  be  as 
satisfactory  to  their  minds  as  the  direct  testimony  of 
credible  witnesses.  And  this  instruction  was  sus- 
tained :  "  In  order  to  convict,  circumstantial  evidence 
should  be  such  as  to  produce  nearly  the  same  degree 
of  certaint}'  as  that  which  arises  from  direct  testi- 
mony, and  to  exclude  a  rational  probability  of  in- 
nocence.^ 

§  565.  In  Iowa,  when  the  court  grouped  together 
many  legitimately  provable  facts,  which  the  evidence 
tended  to  establish,  and  instructed  the  jury  that  "  such 
facts  as  these,  if  shown  by  the  testimony,  constitute 
circumstantial  evidence;  circumstantial  evidence  is 
legal  evidence,  and  convictions  had  upon  it  are  legal 
convictions;  the  jury  will  look  at  all  the  evidence, 
and  from  it  make  up  their  minds  as  to  the  guilt  or 
innocence  of  the  defendant,"  it  was  held  that,  while 

6  Crilleyy.  State,  20Wis.231.          »  People  v.  Cronin,    34    Cal. 

7  O'Halloran,  31  Ga.  209.  191. 


CiiAP.  XVI.]  CRIMINAL    EVIDENCE.  467 

such  a  mode  of  instructing  should  not  be  encouraged, 
yet  it  was  not  necessarily  erroneous,  and  that  although 
all  the  facts  thus  grouped  were  against  the  defendant, 
this  was  not  error,  since  it  was  competent  for  ^he 
prisoner  to  ask  an  instruction,  grouping  the  facts  in 
his  favor." 

§  566.  An  instruction  that  the  jury  might  consider 
"  all  the  facts  and  circumstances  surrounding  the  par- 
ties at  the  time  of  the  deed,"  is  held  proper,  and  is  to 
be  construed  as  extending  to  antecedent  threats.'" 
But  there  is  this  limitation,  that  the  instruction  is  to 
be  understood  as  referring  only  to  all  the  facts  in 
evidence. '^  And  the  court  may  recite  the  evidence 
claimed  by  the  parties,  where  this  is  done  fairly,  for 
the  purpose  only  of  a  proper  explanation  of  the  law 
applicable  to  the  case.^- 

§  567.  In  the  very  able  charge  delivered  in  the  cel- 
ebrated Webster-Parkman  case,  there  is  an  extended 
explanation  of  cu-cumstantial  evidence  which  will 
furnish  us  with  a  proper  rule  in  charging  on  this 
subject.  We  are  confined  by  our  space  to  a  few 
extracts. 

"  The  distinction,  then,  between  direct  and  circum- 
stantial evidence  is  this.  Direct  or  positive  evidence 
is  when  a  witness  can  be  called  to  testify  to  the  precise 
fact  which  is  the  subject  of  the  issue  4m  trial ;  that  is,  in 
a  case  of  homicide,  that  the  party  accused  did  cause  the 
death  of  the  deceased.     Whatever  may  be  the  kind  or 

^  State  r.  Carnahan,  IT  Iowa,         ^^  People  v.  Kellev,  28  Cal. 

256.  423. 

10  Johnson  v.  State,  27  Tex.         ^  Mimms  v.   State,  10  Ohio 

158.  St.  222. 


468  rS^STKUCTIOXS   A:NT>    CHAEGES.  [Part  II. 

force  of  the  evidence,  this  is  the  fact  to  be  proved. 
But  suppose  no  person  was  present  on  the  occasion  of 
the  death,  and,  of  course,  that  no  one  can  be  called  to 
testify  to  it :  is  it  wholly  unsusceptible  of  legal  proof? 
Experience  has  shown  that  circumstantial  evidence 
may  be  offered  in  such  a  case;  that  is,  that  a  body  of 
facts  may  be  proved  of  so  conclusive  a  character  as 
to  warrant  a  firm  belief  of  the  fact  quite  as  strong  and 
certain  as  that  on  which  discreet  men  are  accustomed 
to  act  in  relation  to  their  most  important  concerns. 
It  would  be  injurious  to  the  best  interests  of  society 
if  such  proof  could  not  avail  in  judicial  proceedings. 
If  it  were  necessary  always  to  have  positive  evidence, 
how  many  criminal  acts  committed  in  the  communit}^, 
destructive  of  its  peace,  and  subversive  of  its  order 
and  security,  would  go  wholly  undetected  and  unpun- 
ished ! 

"The  necessity,  therefore,  of  resorting  to  circum- 
stantial evidence,  if  it  is  a  safe  and  reliable  proceed- 
ing, is  obvious  and  absolute.  Crimes  are  secret.  Most 
men,  conscious  of  criminal  purposes,  and  about  the 
execution  of  criminal  acts,  seek  the  secui'ity  of  se- 
crecy and  darkness.  It  is  necessary,  therefore,  to 
use  all  other  modes  of  evidence  besides  that  of  direct  • 
testimony,  provided  such  proofs  may  be  relied  on  as 
leading  to  safe  and  satisfactory  conclusions;  and 
thanks  to  a  beneficent  Providence,  the  laws  of  nature 
and  the  relations  of  things  to  each  other  are  so  linked 
and  combined  together  that  a  medium  of  proof  is 
often  thereby  furnished,  leading  to  inferences  and 
conclusions  as  strong  as  those  arising  from  direct 
testimony. 


Chap.  XVI.]  CRIMEN^AL    EVIDENCE.  469 

"  On  this  subject  I  will  once  more  call  attention  to 
a  remark  in  the  work  already  cited  —  East's  Pleas  of 
the  Crown,  c.  5,  §11.  ^Perhaps,'  he  says,  ^strong 
circmnstantial  evidence  in  Cases  of  crime  like  this, 
committed  for  the  most  part  in  secret,  is  the  most  sat- 
isfactory of  any  from  whence  to  draw  the  conclusion 
of  guilt;  for  men  may  be  seduced  to  perjury  by  many 
base  motives,  to  which  the  secret  nature  of  the  offence 
may  sometimes  afford  a  temptation ;  but  it  can  scarcely 
happen  that  many  circumstances,  especially  if  they  be 
such  over  which  the  accuser  could  have  no  control, 
forming  together  the  links  of  a  transaction,  should 
all  unfortunately  concur  to  fix  the  presumption  of 
guilt  on  an  individual,  and  yet  such  a  conclusion  be 
erroneous.' "  ^^ 

§  568.  When  the  defence  of  an  alibi  is  set  up,  it 
devolves,  of  course,  upon  the  defendant  to  prove  it  to 
the  satisfaction  of  the  jury;  but  the  weight  of  the 
evidence  is  exclusively  for  them;  so  that  it  was  held 
error  to  instruct  that  "  an  alibi  is  a  species  of  defence 
often  set  .up  in  criminal  cases,  and  one  which  seems  to 
figure  in  this  case,"  since  the  language  was  well  cal- 
culated to  give  the  impression  that  the  court  regarded 
that  particular  defence  as  a  pretence  without  founda- 
tion in  truth."  But  in  the  Webster  charge  before 
cited,  it  is  said  concerning  this  defence,  "This  is  a 
defence  often  attempted  by  contrivance,  subornation, 
and  perjury.  The  proof,  therefore,  offered  to  sustain 
it  is  to  be  subjected  to  a  rigid  scrutiny,  because,  with- 
out attempting  to  control  or  rebut  the  evidence  of 

^^  Commonwealth  v.  Webster,  ^*  Walker  v.  State,   B1   Tex. 

5  Cush.  310.  361. 


470  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

facts  sustaining  the  charge,  it  attempts  to  prove  affirm- 
atively another  fact  wholly  inconsistent  with  it;  and 
this  defence  is  equally  available,  if  satisfactorily  estab- 
lished, to  avoid  the  force  of  positive  as  of  circumstan- 
tial evidence.  In  considering  the  strength  of  the 
evidence  necessary  to  sustain  this  defence,  it  is  obvi- 
ous that  all  testimony  tending  to  show  that  the  accused 
was  in  another  place  at  the  time  of  the  offence,  is  in 
direct  conflict  with  that  which  tends  to  prove  that  he 
was  at  the  place  where  the  crime  was  committed,  and 
actually  committed  it.  In  this  conflict  of  evidence, 
whatever  tends  to  support  the  one  tends,  in  the  same 
degree,  to  rebut  and  overthrow  the  other,  and  it  is  for 
the  jury  to  decide  where  the  truth  lies."  ^^ 

§  569.  As  to  dying  declarations,  where  a  judge  in- 
structed the  jury  that  these  are  evidence  of  facts, 
upon  the  ground  that  "  statements  are  more  woi'thy 
of  credence,  when  made  under  such  circumstances, 
than  if  made  under  the  sanctity  of  an  oath,  duly  ad- 
ministered according  to  law,"  and  then  stating  rules 
concerning  the  admissibility  of  such  declarations, 
added,  "If  these  facts  appear  from  the  evidence, 
under  the  foregoing  rules  of  law,  it  becomes  the 
highest  testimony  known,  and  must  receive  full  faith 
and  credit  by  the  jury,"  it  was  held  error  on  tw^o 
grounds;  (1)  as  being  on  the  weight  of  evidence; 
and  (2)  as  raising  hearsay  testimony  to  the  grade  of 
the  highest  testimony  known;  whereas  dying  dec- 
larations are  exceptional  merely,  and  it  belongs  to  the 
jury  to  estimate  their  value  in  each  case.'^ 

15  5  Gush.  319.  16  Walker  v.   State,  37   Tex. 

366. 


Chap.  XVI. ]  CRIMINAL.   EVIDENCE.  471 

§  570.  Where  a  judge  emphatically  asks,  in  a 
charge,  "Wliere  is  the  evidence  to  establish  this 
fact?"  it  will  be  taken  that  he  means  to  deny  that  there 
is  any  evidence.^''  And  in  the  absence  of  evidence,  a 
verdict  of  acquittal  may  be  directed,'®  although,  prob- 
ably, not  of  conviction. 

§  571.  Where  the  facts  adduced  by  the  prosecution 
were  not  a  series  of  dependent  circumstances,  it  was 
held  not  error  to  instruct  the  jury  that,  though  the 
state  had  failed  to  establish  any  one  or  more  of  the 
facts  relied  on  for  conviction,  yet  if  enough  had  been 
shown  to  satisfy  them  beyond  a  rational  doubt  of  the 
defendant's  guilt,  it  would  be  their  duty  to  convict.'^ 

§  572.  The  definition  of  reasonable  doubt  is  thus 
given  in  the  Webster  charge,  previously  cited: 
"  Then  what  is  reasonable  doubt?  It  is  a  term  often 
used,  probably  pretty  well  understood,  but  not  easily 
defined.  It  is  not  mere  possible  doubt,  because  every- 
thing relating  to  human  affairs,  and  depending  on 
moral  evidence,  is  open  to  some  possible  or  imaginary 
doubt.  It  is  that  state  of  the  case  which,  after  the 
entire  comparison  and  consideration  of  all  the  evi- 
dence, leaves  the  minds  of  jurors  in  that  condition 
that  they  cannot  say  they  feel  an  abiding  conviction, 
to  a  moral  certainty,  of  the  truth  of  the  charge." 

It  is  held,  in  IN^orth  Carolina,  that  an  instruction 
on  the  matter  of  reasonable  doubt  may  be  properly 
submitted  if  the  rule  has  been  properly  laid  down  by 

^"^  State  V.  Simmons,  6  Jones  ^^  State  v.  Frank,  5  Jones 
(N.  C.)21.  (N.  C.)384. 

18  Benedict  v.  State,  14  Wis. 
427. 


472  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

defendant's  counsel,  and  admitted  by  the  prosecuting 
attorney  .^^ 

§  573.  The  definition  given  by  the  Supi'eme  Court 
of  Mississippi  is,  "  That  which  amounts  to  mere  pos- 
sibihty  only,  or  to  conjecture  or  supposition,  is  not 
what  is  meant  by  a  reasonable  doubt.  The  doubt 
which  should  properly  induce  a  jury  to  withhold  a 
verdict  of  guilty  should  be  such  a  doubt  as  would 
reasonably  arise  fi'om  the  evidence  before  them.^^  In 
"Wisconsin,  a  definition  given  in  an  instruction  was  held 
entirely  too  strong,  namely:  "The  evidence  in  this 
class  of  cases  [larceny] ,  to  authorize  a  conviction,  must 
be  such  as  will  exclude  every  theory  and  hypothesis 
except  that  of  the  guilt  of  the  defendant,"  the  court 
holding  the  true  rule  to  be,  that  the  evidence  must  be 
such  as  to  satisfy  the  jury,  beyond  a  reasonable 
doubt,  of  the  defendant's  guilt." 

In  Kentucky,  this  instruction  was  condemned :  "  If 
they  have  a  reasonable  doubt  of  the  truth  of  any  fact, 
any  series  of  facts  or  propositions  necessary  and 
essential  in  their  judgments  to  the  conclusion  of  guilt, 
that  the  prisoner  is  entitled  to  the  benefit  of  that 
doubt,  and  they  must  acquit  him,"  ^'^  because  it  failed 
to  inform  them  what  were  the  essential  facts  necessary 
to  be  made  out  before  they  could  find  the  prisoner 
guilty  of  any  ofience. 

§  574.  It  is  held  that  a  prisoner  is  entitled,  where 
the  evidence  is  wholly  circumstantial,  and  there  is 
nothing  to  connect  him  directly  with  a  homicide,  to  a 

20  State  V.  Johnson,  3  Jones,  22  gt^te  v.  Ford,  21  Wis.  610. 
266.  23  Sparks  v.   Commonwealth, 

21  Bowler  v.  State,  41  Miss.  3  Bush.  117. 
571. 


Chap.  XVI.]  CRIMINAL    EVIDEXOE.  4:73 

full  and  clear  instruction  as  to  what  the  law  means  by 
a  reasonable  doubt.^'^ 

§  575.  Where  the  instruction  was  asked  that  the 
prisoner  was  entitled  to  a  verdict,  "unless  the  evi- 
dence was  such  as  to  exclude  to  a  moral  certainty 
every  supposition  but  that  of  his  guilt,"  it  was  held 
not  error  to  add  thereto  the  explanatory  clause,  "  this 
only  means  that  the  jury  must  be  satisfied  beyond  a 
reasonable  doubt  of  his  guilt."  ^^  And,  also,  where 
the  court  refused  to  instruct  that  "  the  defendant  is 
entitled  to  the  benefit  of  every  reasonable  doubt  upon 
every  material  fact  in  the  case,"  substituting  the  in- 
struction that  "  the  defendant  is  entitled  to  the  benefit 
of  every  reasonable  doubt  of  his  guilt  remaining  in 
the  minds  of  the  jury  after  canvassing  the  whole  of 
the  testimony  in  the  case,"  it  was  held  correct.~'' 

Also,  where  the  court  reiused  to  instruct  the  jury 
that,  "  If  the  proof  of  the  case  rests  upon  circumstan- 
tial evidence,  then  they  must  be  satisfied  that  the 
government  has  proved  such  a  coincidence  of  circum- 
stances as  excludes  every  hypothesis  except  the  guilt 
of  the  prisoner;  and  unless  they  are  satisfied  that  the 
proof  of  circumstances  ofiered  by  the  government 
does  exclude  every  other  hypothesis  except  the  guilt 
of  the  prisoner,  then  they  ought  not  to  convict  the 
defendant;"  and  instead  instructed,  that  "the  govern- 
ment was  bound  to  prove  the  defendant  guilty  beyond 
all  reasonable  doubt  and  to  a  moral  certainty,  and 

24  People  z^.Lachanais,  32  Cal.  ^6  ^yjge  y^  State,  2  Kan. 
433.  419. 

25  Turbeville  v.  State,  40  Ala. 
115. 


474  INSTRUCTIONS    AND    CHARGES.  [Part  XL 

unless  the  evidence  in  the  case  satisfied  them  to  that 
extent,  they  ought  to  acquit  the  defendant."  ~^ 

Also,  it  is  held  no  reversible  error  for  the  court  to 
refuse  to  charge  concerning  reasonable  doubt,  when 
there  was  no  room  for  such  doubt  on  the  evidence ;  ^^ 
since  the  jury  should  not  be  coaxed  into  a  doubt  by 
instructions.-^ 

§  576.  As  to  a  penalty  on  conviction,  it  is  held, 
that,  where  there  are  several  offences  charged  in  the 
same  indictment,  they  must  be  treated  as  distinct  in 
the  instructions  given  to  the  jury."^" 

§  577.  An  instruction  that,  "  although  death  did 
not  ensue  from  the  deed,  yet  the  malice  aforethought 
was  equally  implied  from  the  act  as  though  death  did 
ensue,"  was,  in  Louisiana,  judged  erroneous,  because 
it  implied  an  opinion  on  the  act  proved  which  the 
judge  was  prohibited  from  giving.^^ 

§  578.  In  civil  cases,  where  a  criminal  act  is  so  set 
out  in  the  pleadings  as  to  raise  that  distinct  issue 
before  the  jury,  the  crime  charged  must  be  proved 
beyond  a  reasonable  doubt  before  the  plaintiif  is  en- 
titled to  a  verdict;  but  where  no  such  issue  is  raised 
by  the  pleadings,  the  jury  may  decide  upon  the  pre- 
ponderance of  evidence.^- 

§  579.  There  is  no  "formula"  to  which  judges  may 
resort  for  gauging  the  degree  to  which  a  jury  must 

27  Commonwealth  v.  Goodwin,  so  ]\Xaul  v.  State,  25  Tex.  166. 
14  Gray,  56.  ^^  State  v.  Munco,  12  La.  An. 

28  McGuire  v.  State,  31  Miss.     625. 

370.  S2  Sinclair  v.  Jackson,  41  Me. 

29  State  V.    Schoenwald,    31     102. 
Mo.  147. 


Chap.  XVII.]  SPECIFIC   APPLICATIONS.  475 

be  convinced  in  order  to  justify  a  verdict  of  guilty; 
and  all  attempts  to  establish  such  have  resulted  in  no 
good.^^ 


CHAPTEE    XVn. 

Specific  Applications. 

§  580.  The  Supreme  Court  of  Illinois,  in  a  certain 
case,  animadverted  on  the  multiplicity  of  instructions 
thus :  "  The  only  question  of  law  was  as  to  the  liabil- 
ity of  the  defendant  to  pay  for  bricks  obtained  for 
him,  and  used  for  his  benefit.  The  right  to  demand 
instructions  must  have  some  limit,  and  we  are  not  dis- 
posed to  sanction  its  abuse.  Sixteen  instructions  in 
this  case  could  not  have  been  required,  on  the  part  of 
the  defendant,  for  the  purpose  of  merely  enlightening 
the  jmy  upon  the  law  of  the  case,  and  were  well  cal- 
culated to  confuse  and  mislead  them."  ^ 

§  581.  Wliere  a  verdict  was  rendered  on  Sunday, 
whereas  Saturday  was  the  last  day  of  the  term,  it  was 
sustained,  under  these  circumstances :  The  jury  re- 
turned, at  twelve  o'clock  on  Saturday  night,  with  the 
report  that  they  could  not  agree.  The  plaintiff  then 
asked  the  court  to  instruct  them  whether  a  verdict  on 
Sunday,  after  the  expiration  of  the  term,  would  be 
valid,  and  whether  they  were  bound  to  deliberate 
longer.  The  court  refused  any  instruction  in  terms, 
but  virtually  instructed  them  by  saying  that  they  were 

S3  State  i;. Parker,  Phill.(N.C.)  ^  Fisher  v.  Stevens,  16  III 
47^.  400. 


476  IXSTKUCTIOXS    A2^D    CHARGES.  [Part  II. 

sworn,  and  had  better  do  their  duty,  and  directing 
them  to  retire.  The  Supreme  Court  held  that  a  ver- 
dict may  be  returned  and  received  on  Sunday;  but 
the  judge  cannot  receive  it  at  his  house,  or  elsewhere 
out  of  court.-  But  I  do  not  think  this  case  can  ever 
be  drawn  into  precedent  even  in  the  state  where  it 
occurred. 

§  582.  In  capital  criminal  cases,  the  same  strictness 
as  to  requesting  is  not  required  as  in  civil  cases.  The 
court  may  be  in  error  even  where  there  has  been  no 
request  for  further  instructions  therein.^ 

§  583.  In  Illinois,  a  judgment  will  not  be  reversed 
because  the  words  "  from  the  evidence  "  were  left  out 
of  an  instruction  after  the  Avord  "  believe,"  unless  it 
appears  affirmatively  to  have  thereby  misled  the  jury.^ 

§  584.  It  is  not  error  in  a  court  to  refuse  to  instruct 
as  to  the  exceptions  to  the  laAV  generally  stated,  un- 
less there  is  evidence  tending  to  bring  the  case  at  bar 
within  the  exceptions,  even  in  a  criminal  proceeding.^ 

§  585.  Refused  instructions  should  not  be  read  in 
the  presence  and  hearing  of  the  jury.'' 

§  586.  An  instruction  that  assumes  that  the  jury 
will  render  a  verdict  in  favor  of  any  particular  party 
is  erroneous.'' 

§  587.  Where  there  are  two  issues  fairly  presented 
by  the  pleadings  and  evidence,  it  is  error  for  the 
judge  in  his  charge  to  submit  the  case  on  one  of  them 

2  Rosser  v.  McColly,  9  Ind.  ^  State  v.  Downer,  21  Wis. 
687.  277. 

3  Phipps  V.  State,  3  Cold.  ^  Waldie  v.  Ball,  29  Cal.  556. 
(Tenn.)  344;  State  v.  McNa-  ^  Hawk  v.  Ridgway,  33  111. 
mara,  3  Nev.  70.  473. 

4  Holliday  v.  Burgess,  34  III. 
193. 


Chap.  XVII.]  SPECrFIC   APPLICATION'S.  477 

only,  if  testimony  has  been  adduced  to  establish  the 
other;  it  is  for  the  jury  to  decide  upon  the  sufficiency 
thereof.^ 

§  588.  A  judge  cannot  be  required  to  rule  upon 
the  force  and  effect  of  testimony  upon  each  position 
as  it  is  adduced,  nor  to  express  his  views  as  to  the 
relative  condition  of  parties,  as  to  the  burden  of  proof 
at  successive  stages  of  the  trial.^ 

§  589.  In  an  action  on  a  promissory  note,  in  which 
the  defence  was  want  of  consideration,  there  was  a 
request  to  instruct  that  the  note  was  prima  facie  evi- 
dence of  consideration;  and  if  they  were  not  satis- 
fied of  the  truth  of  the  defendant's  evidence,  the  ver- 
dict must  be  for  the  plaintiff.  This  was  refused,  the 
judge  instructing  the  jury,  that,  though  the  law  was 
so,  he  could  not  so  charge  them,  because  there  was 
other  evidence  besides  the  note,  and  they  must,  on 
considering  all  the  evidence,  find  a  verdict  on  a  fair 
preponderance  of  evidence,  the  burden  of  proof  be- 
ing oil  the  plaintiff".     Held  correct."^ 

§  590.  In  an  action  for  malicious  prosecution,  it  is 
error,  in  connection  with  a  correct  charge  as  to  what 
constitutes  probable  cause,  to  make  such  observations 
to  the  jury  as  may  lead  them  to  infer  that  the  guilt  or 
innocence  of  the  plaintiff"  of  the  criminal  charge  was 
a  question  in  the  cause. ^^ 

§  591.  A  plaintiff  may  raise  a  question  of  law  aris- 
ing out  of  the  facts  enumerated  in  an  instruction,  and 

^  Smithwick  v.  Andrews,   24  ^^  Morris  v.  Bowman,  55  Me. 

Tex.  488.  467. 

^  Hovey  v.  Hobson,  55  Me.  ^^  Fisher  v.  Forrester,  33  Pa. 

256.  St.  501. 


478  INSTRUCTIONS   AND    CHAKGES.  [Part  II. 

to  demand  an  opinion  on  it,  not  as  conclnsive  of  his 
right  to  recover,  but  as  ancillary  to  that  right. ^- 

§  592.  A  jury  ought  not  to  be  left  to  construe  and 
determine  the  effect  of  pleadings,^^  although,  while  it 
is  the  province  of  the  court  to  determine  from  the 
pleadings  what  allegations  are  admitted,  and  what 
denied,  directions  as  to  such  admissions  or  denials 
will  be  given  to  the  jury  only  when  the  condition  of 
the  pleadings  makes  it  necessary.^*  And  a  charge 
that  under  the  evidence  does  not  correctly  construe  a 
contract  involved  in  the  issue  is  not  to  be  regarded  as 
erroneous  if  it  express  the  same  idea  as  that  conveyed 
by  the  plea  which  sets  it  up  as  a  defence. ^'^ 

§  593.  On  the  matter  of  private  negligence,  an 
interesting  case  arose  in  Texas,  of  which  I  avail  my- 
self of  the  syllabus  of  the  reporter,  namely,  — 

"  The  following  charge,  given  in  the  court  below, 
held  to  be  erroneous,  viz :  '  The  plaintiff  would  not  be 
guilty  of  such  negligence  as  would  preclude  him  in 
a  proper  case  from  recovering  if  he  was  guilty  of  no 
other  negligence  than  permitting  his  stock  to  remain 
in  the  range  which  he  used  with  others  as  public  range 
before  the  diseased  stock  of  defendant  made  its  ap- 
pearance. If,  however,  plaintiff,  or  his  agent,  know- 
ingly permitted  his  stock  to  run  with  the  diseased 
stock  of  defendant  on  that  portion  of  defendant's 
own  land,  where  defendant's  stock  were  kept  and 
herded,  after  having  knowledge  of  the  disease,  and 

^  Parkhurst  v.  R.  R.  Co.   19  Iowa,  273  ;  Potter  v.  Wooster, 

Md.  4T9.  ibid.  334. 

13  Hall    V.    Renfro,    3    Met.  ^^  Fort  v.  Barnett,   23   Tex. 

(Ky.)52.  460. 

1*  Fannon    v.   Robinson,     10 


Chap.  XVII.]  SPECIFIC   APPLICATIONS.  479 

thereby  his  stock  became  diseased,  and  his  loss  re- 
sulted, he  would  not,  in  that  event,  be  entitled  to 
recover.' 

"The  first  part  of  this  charge  would  leave  the 
impression,  that  if  the  plaintiff's  stock  were  in  that 
range,  he  having  before  that  time  used  it  in  common 
with  others,  it  was  not  negligence  in  him  to  let  them 
remain  there  as  before;  and  if  loss  resulted  to  the 
plaintiff,  the  defendant  would  be  responsible.  This 
is  not  correct :  when  the  plaintiff  was  warned  of  the 
danger,  it  was  equally  incumbent  on  him  to  keep  his 
stock  away  from  the  defendant's,  as  it  was  upon 
the  defendant  to  keep  his  upon  his  own  premises, 
and  prevent  their  running  at  large,  and  communi- 
cating the  disease  to  the  plaintiff's  stock.  If  there 
was  dangej*,  and  the  plaintiff  was  apprised  of  it, 
and  by  the  use  of  ordinary  diligence  could  have 
avoided  the  injury  to  his  own  stock,  his  failure  to  do 
so  was  negligence,  and  he  cannot  hold  the  defendant 
responsible.  If  the  plaintiff  negligently  suffered  his 
stock  to  mix  with  the  defendant's  upon  defendant's 
premises  or  elsewhere,  having  been  apprised  of  the 
danger,  he  could  not  recover. 

"  But  the  pi'incipal  objection  to  the  latter  part  of 
the  charge  is,  that  it  leaves  an  inference  that,  to  pre- 
vent a  recovery,  the  injury  must  have  been  occasioned 
solely  by  the  plaintiff's  negligence,  suffered  in  a  par- 
ticular manner.  To  entitle  the  plaintiff  to  recover, 
he  must  have  satisfied  the  jury  that  he  had  used  ordi- 
nary care,  or  that  the  injury  was  wholly  attributable 
to  the  defendant's  fault. 

"  The  jury  having  asked,  ^  Would  defendant's  en- 


480  INSTKUCTIOXS   A^ny   CHABGES.  [Part  II. 

closed  lands  be  considered  his  premises?  If  yea,  and 
the  defendant  or  agent  permitted  his  stock  to  run  at 
large  at  night,  would  it  be  negligence  in  the  plaintiff 
or  agent  to  suffer  his  stock  to  do  the  same? '  to  which 
the  court  answered,  *It  would  not;'  this  was  held 
objectionable  as  a  charge  upon  the  weight  of  evi- 
dence, and  also  erroneous  in  maldng  defendant's  neg- 
ligence an  excuse  for  plaintiff's.  The  rule  of  law  in 
this  class  of  cases  is,  that  if,  by  ordinary  care,  the 
plaintiff  might  have  avoided  the  consequences  of  the 
defendant's  negligence,  he  is  not  entitled  to  recover."  ^"^ 

§  594.  "While  a  father  will  be  held  liable  in  trespass 
for  an  injury  committed  by  his  team  when  driven  by 
a  son,  with  whom  he  was  riding  at  the  time,  and  while 
a  binding  direction  to  the  juiy  that  he  is  so  liable 
would  be  error,  yet  where  the  question  of  liability 
under  the  evidence  is  fairly  left  to  the  jury,  under 
instructions  that  the  defendant  was  only  answerable 
for  carelessness  or  wilful  misconduct,  and  not  if  the 
damage  resulted  fi'om  accident  or  mutual  negligence, 
the  judgment  will  not  be  reversed  on  a  verdict  for  the 
plaintiff.'' 

§  595.  As  to  negligence  in  public  carriers,  it  has 
been  held  not  error  to  instruct  that  if  an  express  com- 
pany, to  whom  a  note  is  intrusted,  fails  to  show  the  cir- 
cumstances of  the  loss,  it  may  be  presumed  to  have  been 
lost  through  negligence.  When  a  party  is  intrusted 
with  property  for  which  afterwards  he  is  unable  to 
account,  if  it  does  not  amount  to  a  legal  presumption 
of  carelessness,  it  is  at  least  so  far  conclusive  that  an 

16  Walker  v.  Herron,  22  Tex.  i'  Strohl  v.  Levan,  39  Pa.  St. 

65.  1T7. 


Chap.  XVII.]  SPECIFIC   APPLICATIO^-S.  481 

appellate  court  will  not  reverse  for  the  giving  of  such 
instruction.^^ 

§  596.  Wlien  a  court  instnicts  a  jury  that  reason- 
able diligence  is  required  in  the  taldng  possession  by 
the  mortgagee  of  a  chattel,  it  should  also  inform  them 
what  facts  in  reference  to  the  case  at  bar  would  con- 
stitute reasonable  diligence.'^ 

§  597.  Where  suit  was  brought  to  recover  price 
paid  for  goods  which  had  been  lost  in  transportation 
by  reason  of  a  failure  to  put  the  plaintiff's  name  or 
residence  on  them,  or  in  the  bill  of  lading,  and  the 
jury  were  instructed  that  the  vendor  might  remedy 
the  omission  by  subsequent  information  to  the  carrier, 
and  furnishing  the  purchaser  vouchers  to  show  his 
title  to  the  goods,  these  vouchers  being  accepted  as 
sufficient  by  the  plaintiff,  who,  on  receiving  them, 
undertook  to  see  to  the  forwarding  of  the  goods, 
without  further  assistance  from  the  vendor,  and  that 
both  the  information  to  the  carrier  and  the  vouchers 
were  necessary,  in  order  to  put  the  carrier  and  the 
purchaser  in  the  position  in  which  they  would  have 
been  if  there  had  been  no  failure  of  legal  obligation 
on  the  part  of  the  vendor,  it  was  held  that  the  vendor 
had  no  ground  of  exception,  and  that  if  goods  are 
destroyed  under  such  circumstances  en  route,  the 
plaintiff's  claiming  them,  and  endeavoring  to  have 
them  forwarded  to  him  after  the  vendor's  failure,  will 
not  operate  as  a  waiver,  unless  he  intended  a  waiver.^" 

§  598.  As  to  the  submission  of  a  lease,  a  case  is 

^^  Express  Co.  v.  Parsons,  "^^  Finn  v.  Clark,  12  Allen, 
44-  111.  313.  622. 

^9  Barbour ?».  White,  37  111.  164. 

31 


482  IN-STRUCTIONS    AND    CHAP.GES.  [Part  II. 

reported  from  the  Supreme  Cornet  of  the  United  States, 
of  which  the  syllabus  is  as  follows:  "A  sued  B  for 
rent,  as  a  co-lessee  with  C;  B,  admitting  his  mere 
signature,  set  up,  in  defence,  that  he  had  signed  the 
lease  with  the  express  understanding  between  him 
and  A  that  one  D  would  also  sign  it;  and  that  it  was 
then  proposed  by  A  to  have  C  in  the  place  of  A,  but 
that  B  positively  objected  to  having  his  name  on  a 
lease  w  ith  C ;  that  thereupon  A  said  it  would  make 
no  difference,  for  that  he  would  release  B.  C  now 
signed.  Some  evidence  tended  to  prove  these  facts, 
and  some  to  prove  a  different  state  of  facts.  The 
court  submitted  it  to  the  jury  whether  there  had  been 
any  accejitance  of  the  lease  by  B.  Held  that  this 
was  equivalent  to  submitting  to  them  whether  the 
instrument  had  been  delivered  at  all  as  the  deed  of 
B,  and  that  this  was  a  proper  submission,  and  that  it 
was  not  (as  contended  by  plaintiff  in  error)  to  sub- 
mitting whether  the  deed  had  been  delivered  and 
accepted  by  B  on  condition  that  he  should  be  released 
afterwards  —  a  submission  which,  it  was  admitted  by 
the  court,  would  not  stand  on  the  same  footing.-^ 

§  599.  Where  there  was  an  issue  on  the  genuine- 
ness of  a  deed,  this  instruction  was  given :  "  If  there 
is  a  reasonable  theory  consistent  with  the  evidence  by 
which  the  jury  can  find  in  favor  of  the  genuineness 
of  the  deed,  and  consistent  with  the  honesty  and 
truthfulness  of  all  the  witnesses  in  the  case,  it  is  the 
duty  of  the  jmy  to  adopt  that  theory  in  preference  to 
one  by  which  perjury  or  forgery  may  be  involved  on 

21  Wadsworth  v.  Warren,  12  Wall.  .30T. 


Chap.  XVII.]  SPECrFIC    APPLICATION'S.  483 

the  i)art  of  a  portion  of  the  witnesses."  Held  no 
error." 

§  600.  A  conrt  may  state  the  claim  of  each  party 
as  disclosed  by  the  evidence,  and  charge  the  law 
thereon,  and  instruct  as  to  the  legal  effect  of  any  one 
of  several  facts  relied  upon  to  establish  a  waiver,  leav- 
ing it  to  the  jury  to  pass  upon  the  general  question 
from  all  the  evidence  in  the  case.-'' 

Where  there  is  a  set-off  in  an  action  on  a  promis- 
sory note,  instructions  founded  altogether  upon  ad- 
missions of  the  execution,  and  non-payment  of  the 
note  declared  on,  and  not  referring  in  any  way  to  evi- 
dence offered  under  the  plea  of  set-off,  are  bad.  And 
where  a  portion  of  the  testimony  offered  tends  to  sup- 
port the  plea  of  set-off,  but  other  portions  of  it,  if 
believed,  may  be  sufficient,  in  their  judgment,  sup- 
ported by  a  proposition  of  law  properly  deducible 
therefrom,  to  establish  a  case  which  would  defeat  that 
defence,  an  instruction  based  upon  the  evidence  under 
the  plea  of  set-off  is  also  bad.^* 

§  601.  Where,  in  an  action  for  breach  of  promise 
of  marriage,  the  declaration  alleged  the  agreement  to 
marry,  and  the  readiness  of  plaintiff  to  comply  there- 
with, and  the  answer  admitted  the  agreement,  and 
alleged  the  readiness  of  defendant  to  comply,  except 
that  the  plaintiff  refused  except  on  new  and  unreason- 
able conditions,  it  was  held  that  an  instruction  that, 
if  the  defendant  promised  to  marry  the  plaintiff,  and 
failed  to  fulfil  his  promise,  the  burden  was  on  him  to 

22  Wright  V.  Carillo,  22  Cal.         24  Schillinger    v.    Kratt,    25 
597.  Md.  49. 

23  Grout  V.  Nichols,  53  Me. 
883. 


484  DESTRUCTIONS   ANT>   CHARGES.  [Pakt  II. 

justify  his  failure  on  the  grounds  he  alleged,  was  held 
erroneous,  because,  in  the  view  of  the  court,  this  was 
not  in  the  nature  of  a  confession  and  avoidance,  but 
a  mere  denial,  and  so  had  no  effect  in  shifting  the 
burden  of  proof.^"'  But  I  do  not  think  this  would  be 
generally  followed  as  a  precedent. 

§  602.  Fraud  constitutes  a  large  subject  of  litiga- 
tion. And  where  there  is  any  evidence  showing  that 
a  mortgage  was  executed  to  defraud  creditors,  the 
court  may  properly  refuse  to  instruct  that  proof  of 
the  genuineness  of  the  debt  secured  by  the  mortgage 
is  sufficient  to  establish  the  validity  of  the  mortgage.-® 

An  objection  does  not  lie  to  an  instruction  as  as- 
suming facts  as  proved,  which  states  that,  if  the  de- 
fendant did  certain  acts  specified,  they  should  infer  a 
fraudulent  intent.^" 

But,  in  a  suit  for  breach  of  warranty,  it  is  error  for 
a  court  to  charge  concerning  fraud  in  the  sale,  since 
in  such  an  action  the  jury  have  nothing  to  do  with 
the  question  of  fraud."^ 

Where  a  merchant,  largely  in  debt,  sells  out  his 
goods,  being  all  his  property,  on  long  time,  the  court 
must,  on  request,  instruct  the  jury  that  a  long  and 
unusual  mercantile  credit  is  a  badge  of  fraud  to  be 
considered  by  them.^^ 

But,  in  a  case  where  the  evidence  tends  to  prove 
fraud,  an  instruction  is  erroneous  that  "  fraud  is  not 

25  Hook  V.  George,  108  Mass.  28  Wallace  v.  Wren,  32  III. 
330.  150. 

26  Stebbins  V.  Miller,  12  Allen,  ^FiWmg  v.  Otis,  13  Wis. 
591.  495. 

2"  State  V.  Thompson, 19  Iowa, 
299. 


Chap.  XVII.]  SPECIFIC   APPLICATIONS.  485 

to  be  presumed,  but  must  be  proved  by  those  alleging 
it."  ^' 

Wliere  a  note  was  given  in  the  purchase  of  a  horse, 
and  afterwards  negotiated,  and  the  indorsee  brought 
suit  against  the  maker,  and  the  pleas  were  failure,  and 
partial  failure,  and  want  of  consideration,  it  was  held 
error  to  instruct  that,  "  to  sustain  the  defendant's  plea 
of  fraud,  it  must  be  proved  that  there  was  fraud,  by 
the  payee  of  the  note,  in  the  sale  of  the  horse  to  the 
maker,  and  that  there  was  fraud  between  the  assignee 
and  payee  of  the  note  in  the  transfer  of  the  note,  and 
that  it  must  be  proved  that  the  assignee  was  notified 
of  the  fraud  between  the  payee  and  the  maker  in  the 
sale  of  the  horse  before  he  purchased  the  note,"  since 
there  was  no  allegation  of  fraud  in  the  case.^^ 

§  603.  In  an  action  on  fraudulent  representations 
in  the  sale  of  lands,  this  instruction  was  given :  "  That, 
if  the  only  testimony  before  them,  in  relation  to  the 
quality  of  the  land,  is  such  representations  as  may  be 
detailed  to  you  by  witnesses,  uncorroborated  by  any- 
thing in  writing,  or  any  facts  surrounding  the  trans- 
action, such  evidence  should  be  carefully  looked  to  by 
the  jury ;  but  the  declarations  and  representations  of 
the  defendant,  in  regard  to  the  quality  or  condition 
of  the  land,  during  the  trade,  are  important  evidence, 
and  should  be  considered  by  the  jury,"  —  and  was 
held  correct,  on  error.  And  the  court  refused  to 
charge  that  "  hearsay  evidence,  or  what  may  be  said 
by  parties,  which  may  be  given  in  evidence  by  wit- 
nesses, is  or  may  be,  according  to  circumstances,  the 

^  Causey,  Ex'r,  v.  Wiley,  27  ^i  McKay  v.  Bellows,  8  Fla. 
Ga.  444.  32. 


486  DfSTEUCTIONS   AND    CHAKGES.  [Part  II. 

weakest  kind  of  testimony;  "  and  it  was  held  that  the 
refusal  was  proper,  because  the  effect  of  the  instruc- 
tion, if  given  as  asked,  would  have  been  to  attach  the 
character  of  hearsay  to  the  evidence  given  by  the  wit- 
nesses as  to  what  was  said  by  the  parties,  at  the  time 
the  agreement  was  made,  as  to  the  quality  and  char- 
acter of  the  land.^^ 

§  604.  A  case  occurred  in  Texas,  in  regard  to  an 
alleged  fraudulent  conveyance,  of  which  the  following 
is  the  syllabus :  "  Where,  on  a  question  of  fraud,  the 
court  has,  at  the  request  of  one  party,  called  the  at- 
tention of  the  jury  to  certain  parts  of  the  testimony 
as  proper  to  be  considered  by  them  in  determining 
their  verdict,  the  judgment  will  not  be  reversed  be- 
cause the  court,  at  the  request  of  the  other  party 
(who  obtained  the  verdict),  afterwards  called  the  at- 
tention of  the  jury  to  certain,  other  parts  of  the  testi- 
mony in  similar  terms;  but  such  mode  of  calling  the 
attention  of  the  jury,  at  the  request  of  either  party,  to 
particular  circumstances  in  proof  is  improper. 

"  On  an  issue  whether  a  conveyance  was  made  to 
hinder,  delay,  or  defraud  creditors,  it  was  held  not 
proper  to  instruct  the  jury  that  Hhe  payment  of  a  val- 
uable and  adequate  consideration  for  the  land  is  a 
ch'cumstance  that  the  jury  should  consider  in  deter- 
mining the  good  faith  and  fair  dealing  of  the  pur- 
chaser;' but  such  instruction  was  held  not  to  be  good 
ground  for  reversal,  where  the  court,  in  another 
charge  previously  given,  had  clearly  and  distinctly 
presented  the  true  questions  for  the  jury  to  decide, 
and  the  evidence  upon  which  they  must  decide,  in 

32  Sikes  V.  Baer,  8  Clarke  (Iowa)  368. 


CiiAP.  XVII  ]  SPECIFIC   APPLICATIONS.  487 

proper  application  to  the  facts  of  the  case, — the  whole 
charge  not  being  unfavorable  to  appellant. 

"In  like  manner,  the  following  case  was  held  to 
have  been  improper;  but,  for  like  cause,  the  court  re- 
fused to  reverse  the  judgment  *  that  the  defendant's 
(purchaser's)  causing  an  investigation  to  be  made  as 
to  the  right  of  the  defendant's  vendors  to  convey  a 
good  title,  is  another  circumstance  for  the  jury  to  con- 
eider  in  determining  the  good  faith  and  fair  dealing 
of  the  defendant  in  the  transaction."  "^^ 

§  605.  In  an  action  on  a  promissory  note  given  for 
a  mowing-machine,  which  it  was  claimed  was  war- 
ranted, it  is  erroneous  to  instruct  that,  "if  the  jury 
believe  the  contract  was  rescinded,  or  the  warranty 
of  the  machine  broken,  defendants  would  be  entitled 
to  recover  -whatever  amount  they  may  have  paid  on 
the  purchase; "  because  the  defect  may  have  been  im- 
important,  or  the  machine,  notwithstanding,  have  been 
beneficial  to  the  defendants.'^* 

§  606.  In  an  action  for  disturbance  to  a  right  of 
way  claimed  by  prescription,  it  was  held  proper  to 
refuse  an  instruction,  that  if  the  party  using  the  way 
asked  permission  to  do  so  once  within  the  twenty 
years,  or  if  the  owners  of  the  land,  over  which  it 
passed,  objected  to  or  forbade  such  use  once  within 
that  time,  it  would  defeat  the  right  of  waj^  if  the 
judge  has  already  instructed  the  jury  that  the  plain- 
tiff must  prove  an  adverse  use  for  twenty  years,  and 
that  adverse  use  meant  using  the  way  as  of  right 
without  asking  permission  of  any  one,  and  not  by 

33  Wood  V.  Chambers,  20  34  Morgan  v.  Collins,  19  111. 
Tex.  247.  126. 


i88  INSTKUCTIONS   AND   CHARGES.  [Part  II. 

permission,  and  if  the  jury,  in  reply  to  a  question 
submitted  to  them,  find  that  the  right  of  way  was 
acquired  by  twenty  years'  use  before  any  objection 
was  made.^^ 

§  607.  In  an  action  by  the  heirs  of  a  grantor  against 
the  grantee,  to  recover  possession  of  the  land  for 
breach  of  the  condition  on  which  the  conveyance  was 
made,  the  declarations  of  the  grantor  showing  a  per- 
formance of  the  condition  are  admissible.  And  so, 
where  a  deed  was  based  on  the  condition  of  the  sup- 
port and  maintenance  of  the  grantor  and  his  wife,  it 
was  held,  in  such  an  action,  that  it  was  not  error  to 
charge,  that  if  the  grantor  had  expressed  himself  sat- 
isfied with  the  manner  in  w^hich  he  was  treated  by  the 
grantee,  it  was  to  that  extent  a  waiver  of  a  strict  per- 
formance, and  that  the  charge  must  be  taken  as  con- 
fined to  the  time  when  the  admissions  were  made,  and 
not  as  embracing  a  subsequent  period.  And  in  for- 
feiture under  the  condition,  the  jury  may  properly  be 
left  to  determine  whether  the  grantee  intetided  in  good 
faith  to  perform,  and  had  substantially  performed,  the 
3ondition  of  the  deed,  and  that  a  substantial  compli- 
ance with  the  contract  would  save  the  forfeiture.^''' 

§  608.  In  an  action  of  ejectment,  concerning  land 
on  both  sides  of  a  river,  it  was  held  error  to  refuse  an 
instruction,  that  "  if  the  jury  found  from  the  evidence 
that  the  plaintiff  had  shown  a  right  only  to  that  por- 
tion of  the  land  on  one  side  of  the  river,  he  was  not 
entitled  to  recover  with  regard  to  the  portion  on  the 


^  Hovard  v.  O'Neill,  2  Allen,         ^^  Spaulding   v.    Hallenbeck, 
510.  39  Barb.  80. 


Chap.  XVII.]  SPEOEFIC    APPLICATIONS.  489 

other  side."  ^''  It  is  the  duty  of  the  court,  also,  to 
explain  what  is  meant  by  adverse  possession .^^ 

§  609.  Where  a  note  was  given  for  two  town  lots, 
and  an  action  brought  thereon,  and  the  issues  were, 
whether  the  land  claim  had  been  abandoned,  and 
whether  the  note  was  without  consideration,  the  in- 
struction was  refused,  that,  "  under  the  pleadings  in 
this  action,  it  must  appear  satisfactorily  that  the  de- 
fendant demanded  a  conveyance  of  the  lots,  or  the 
plea  of  want  of  consideration  does  not  apply;"  and 
the  refusal  was  held  not  error.^^ 

§  610.  Where  a  court  virtually  charged  the  jury, 
that  the  brand  U.  S.  on  a  horse  was  a  sufficient  proof 
that  the  horse  belonged  to  the  government,  it  was  held 
error,  although  the  fact  of  the  brand  was  a  circum- 
stance to  be  considered.^^ 

§  611.  As  to  the  discharge  of  a  surety,  this  instruc- 
tion was  held  erroneous :  "  If  the  jury  believe  from 
the  evidence  that  A  signed  the  note  as  security,  and 
if  they  further  believe  that  indulgence  was  given  to 
the  company  by  the  plaintiff  without  the  knowledge 
or  consent  of  the  security,  the  security  is  discharged  " 
—  because  the  plaintiff  should  know  that  A  signed  as 
security.^^ 

§  612.  Where,  in  an  action  for  nuisance,  an  instruc- 
tion was  given  to  the  effect  that  the  degree  of  comfort 
to  which  plaintiff  was  entitled,  was  that  ordinarily 
enjoyed  by  other  persons  in  the  neighborhood  other- 

2'^  Van  Vleetf  .Olin,  4Nev.  95.         '*^  Plumtner  v.  Newdigate,   1 

38  Lochhart  v.  Luker,  36  Miss.     Duvall  (Ky.)  1. 

68.  41  Howell  V.   Manuf.  Co.  31 

39  McClane  v.  Thomas,  1  Ore-     Ga.  665. 
gon,  289. 


490  DiTSTRUCTIONS   AND    CHARGES.  [Part  II 

wise  similarly  situated,  and  that  the  acts  of  the  de- 
fendant preventing  this  would  constitute  a  nuisance, 
held,  that  if  intended  to  caution  the  jury  to  adopt 
the  ordinary  standard  of  comfort  and  convenience, 
to  regard  the  notions  of  comfort  and  convenience 
entertained  by  persons  generally  of  ordinaf}'^  tastes 
and  susceptibilities,  the  remarks  might  be  correct; 
but  that,  as  they  may  have  led  the  jury  into  a  mere 
comparison  of  the  situation  of  the  plaintiff  with  that 
of  his  neighbors,  —  into  an  inquiry  simply  whether 
any  difference  was  perceptible,  and  from  the  real 
question  whether  the  consequences  resulting  from  the 
acts  of  the  defendant,  —  the  difference  of  enjoyment, 
if  any  were  found  to  exist,  constituted  an  actual  dam- 
age, they  were  calculated  to  mislead  the  jury."*" 

§  613.  In  an  action  by  the  indorsee  of  a  promis- 
sory note  against  the  maker  and  indorser,  an  instruc- 
tion was  given,  that  *^  if  the  jury  found  the  indorser 
was  released  by  want  of  notice  of  non-payment,  still, 
if  they  also  found  that  he  subsequently  promised  to 
pay  the  note,  he  could  be  held  liable ; "  and  after- 
wards it  was  contended  in  the  Supreme  Court,  that 
the  qualification  ought  to  have  been  added,  that  such 
promise,  in  order  to  bind  the  indorser,  must  have  been 
made  with  the  knowledge  that  he  had  been  released, 
and  nothing  in  the  record  showed  that  at  the  tnal  any 
such  qualification  had  been  requested,  it  was  held, 
that  while  the  instruction  might  have  more  fully 
stated  the  law  with  the  qualification,  yet  that,  giving 
the  word  "promise"  its  proj^er  legal  signification, 
there  was  no  reasonable  probability  that  the  jury  was 

42  Gas  Co.  V.  Freeland,  12  Ohio  State,  392. 


Chap.  XVII.J  SPECIFIO   APPLICATIONS.  491 

misled  by  the  instruction  to  the  prejudice  of  the  ap- 
pellant; and  that  the  party,  having  failed  to  ask  for 
the  qualification  in  the  court  below,  was  not  entitled 
to  complain.*^ 

§  614.  In  an  action  for  a  breach  of  promise,  the 
attorneys  for  the  plaintiff  were  improperly  allowed 
to  argue  to  the  jury,  that  the  fact  of  the  defendant's 
having  moved  and  obtained  a  change  of  venue  was  a 
circumstance  against  him,  and  thereupon  the  defend- 
ant asked  an  instruction  that  the  fact  could  not  prop- 
erly be  considered  prejudicial,  which  the  court  refused. 
The  refusal  was  held  error. 

And  in  the  same  case,  the  pleas  were  the  general 
issue  and  mmority  when  the  promise  was  made,  and 
the  replication  was  a  ratification  after  coming  of  age. 
An  instruction  was  asked  by  the  defendant,  that  "  if 
the  jury  believe  that  the  defendant  was  under  age  at 
the  time  the  plaintiff  assumes  the  contract  was  made, 
to  find  the  defendant  guilty  they  must  find  that  the 
contract  was  made  by  him  while  he  was  under  age, 
or  they  have  no  inquiries  to  make  as  to  what  he  may 
have  said  or  done,  after  he  came  of  age,  that  may  look 
Hke  a  confirmation  or  ratification  of  the  contract;  for 
there  is  none  in  that  case  to  ratify."  It  was  held  prop- 
erly refused.^ 

*3  Ault  V.  Sloan,  4  Clarke  ^  Conaway  v.  Shelton,  3  Ind. 
(Iowa)  608.  336. 


T>A.RT  III. 
BILLS    OF    EXCEPTION 


CHAPTEE   I. 

Office  of  Bills  of  Exception. 

§  615.  The  especial  purpose  of  a  bill  of  exception  is 
to  introduce  into  the  record  that  which  does  not  oth- 
erwise appear  therein,  and  which  it  is  necessary  to 
bring  to  the  notice  of  the  court  to  which  appeal  is 
made.  A  Supreme  Court  will  not  generally  review 
the  judgment  of  the  court  below,  unless  error  appears 
of  record,  or  exceptions  are  taken  and  preserved ;  ^ 
although,  in  some  states,  by  statute,  there  is  a  co- 
ordinate means  adopted,  which,  without  superseding 
bills  of  exception,  will  yet  bring  matters  into  the 
record;  as  where,  as  in  Pennsylvania,  the  judge  who 
delivers  an  opinion  or  a  charge  may,  at  the  request 
of  either  party,  "  reduce  it  to  writing,  with  the  reasons 
therefor,  and  file  the  same  as  of  record  in  the  cause ;  " 
and  where  this  is  done  a  bill  of  exceptions  is,  of 
course,  needless. 

1  Weust  V.  Schroeder,  40  Mo,  602  ;  People  v.  Martin,  32  Cal.  91. 

493 


494  BILLS    OF   EXCEPTIOIf.  [Part  III. 

§  616.  As  it  is  the  office  of  a  bill  to  bring  in  mat- 
ters in  pais,  process,  pleadings,  orders,  judgments, 
&c.,  must  appear  by  the  record,  and  cannot  be  proved 
by  a  bill,'-  which  is  founded  on  some  objection,  in 
point  of  law,  as  to  the  opinion  of  the  court,  the  com- 
petency of  witnesses,  the  admissibility  or  legal  effect 
of  evidence,  or  some  matter  of  law,  on  facts  not  de- 
nied, on  which  either  party  is  overruled  by  the  court.^ 
It  may  apply  to  any  decision  on  matter  of  law,  from 
the  commencement  to  the  close  of  the  trial.*  But  it 
is  a  fundamental  rule  that  it  must  be  taken  on  facts 
which  are  undisputed;  because  the  question  or  point 
of  law,  to  the  decision  of  which  an  exception  lies, 
does  not  arise  until  the  facts  are  determined.* 

§  617.  To  effect  the  purpose  indicated,  no  very 
rigid  rules  of  form  have  been  established,^  although, 
indeed,  there  are  certain  indispensable  characteristics 
to  be  hereafter  noticed  in  regard  to  their  preparation, 
which,  however,  are  not  formal,  but  substantial 
merely. 

§  618.  With  legitimate  matters  of  record  it  is  not 
the  office  of  a  bill  of  exceptions  to  intermeddle,  and 
so  matters  of  record  which  only  appear  in  the  bill 
will  not  be  noticed  by  the  appellate  court.  ]^o  part 
of  the  function  of  a  bill  is  to  amend  the  records,  in 
any  case  whatever;*'  but  only  to  embody  matters  not 
otherwise  properly  appearing  on  the  record.  Thus, 
where  an  exception  to  the  judgment  of  a  court  may 

2  Jameson  v.  Moon,  43  Miss.  ^  City  of  Leavenworth  v. 
598.  Mills,  6  Kan.  299. 

3  Wheeler  v.  Winn,  53  Pa.  ^  Porter  v.  Porter,  41  Miss. 
St.  122.  116. 

4  Will  of  Bowen,  34  Cal.  682. 


Chap.  I]        OFFICE    OF   BILLS    OF   EXCEPTION.  495 

be  certified  in  a  bill,  the  judgment  itself  (Cannot  be, 
this  being  a  part  of  the  record  proper/  And  the 
evidence,  not  being  of  record,  must  be  preserved  by 
bill.^  If  the  bill  be  so  loosely  drawn  as  to  leave  mat- 
ters in  doubt,  the  proceedings  thereon  below  will,  in 
general,  be  affii-med.^  And,  on  the  other  hand,  where 
the  bill  sets  out  a  judgment,  and  the  record  does  not 
certify  it,  the  bill  cannot  be  noticed  thereon,  since  it 
cannot  cure  the  record  defect."' 

§  619.  'Nor  is  it  the  office  of  a  bill  to  bring  up  the 
whole  case  for  re-examination  on  the  general  merits 
thereof,  but  only  for  review  as  to  the  legal  correctness 
of  the  proceedings  excepted  to.^^  As,  where  a  bill 
of  exceptions  was  declared  by  the  Supreme  Court  to 
be  nothing  but  a  recapitulation  of  the  whole  evidence, 
to  induce  the  court  to  determine  whether,  upon  the 
whole,  the  court  below  was  not  mistaken  in  its  con- 
clusions, it  was  animadverted  upon  in  this  language: 
"  This  way  of  presenting  questions  of  law  for  review 
has  been  repeatedly  reproved  by  this  court."  ^~  Where 
an  action  was  brought  on  a  book  account,  to  which 
the  general  issue  was  pleaded,  on  which  verdict  was 
found  for  the  defendant,  it  was  held  that  the  case  could 
not  be  brought  up  for  revision  by  a  bill  and  writ  of 
error ;  ^^  and,  in  a  case  where  the  defendant  below 
stated  all  the  facts  found  by  the  court,  detailing  them 
at  length,  and  concluded  with  the  declaration  that,  upon 

">   Byrue    v.     Cummings,    41  ^^  Miller  v.  Goddard,  34  Me. 

Miss.  195.  106, 

^  Covington     v.    Arvington,  ^^  Lyme  v.  East  Haddara,   14 

32  Miss.  144.  Conn.  398. 

9  Phillips  on  Ev.  p.  T90.  13  Sbelton    V.    Iloadley,    15 

10  Moody  v.  Nichol,  26  Miss.     Conn.  535. 
109. 


4:96  BILLS   OF   EXCEPTIOl!^.  [Part  III. 

such  facts  and  evidence,  the  court  found  the  issue  in 
favor  of  the  plaintiff,  it  was  held  that  this  was  an  at- 
tempt to  bring  up  the  whole  case  for  re-examination, 
and  not  to  be  tolerated."  Only  the  specific  points  ob- 
jected to  should  be  brought  to  the  notice  of  the  court,^^ 
•in  which  the  party  was  overruled ;  ^*''  and  in  an  early 
case  in  ^ew  York,  the  court  quaintly  said  that  the 
party  excepting  must  lay  his  finger  on  those  points 
which  might  arise,  either  in  admitting  or  denying 
evidence,  or  in  matter  of  law  arising  from  a  fact  not 
denied,  in  which  either  party  was  overruled  by  the 
court.^^ 

§  620.  As  a  bill  of  exceptions  will  not  be  allowed 
to  usurp  the  place  of  a  regular  record,  so  neither  will 
a  record  be  allowed  to  include  what  does  not  regu- 
larly belong  to  it,  and  thus  supersede  a  bill ;  and  if 
matters  are  thus  presented,  they  will  not  be  acted 
upon  by  the  appellate  court. ^®  And  hence,  in  regard 
to  these  matters,  parties  can  never  resort  to  entries 
made  by  a  clerk  of  the  court;  as,  for  example,  a  mem- 
orandum that  certain  questions  were  asked  and  not 
allowed  by  the  court,  and  exceptions  taken ;  ^^  or  in- 
structions copied  into  the  transcript,'^"  though  copied 
in  connection  with  the  reasons  for  a  new  trial ;  ~^  or  a 

^*  Sharp  V.  Curtiss,  15  Conn.  507  ;  Van  Gerden  v.   Jackson, 

526.  5  Jolins.  467. 

^^  Hockler's  Heirs  v.    Cabel,  ^^  Foot   v.   Sabin,   19  Johns. 

Walker  (Miss.)  92  ;  Watson  v.  (N.  Y.)  156. 

Watson,  10  Conn.  75,  1   Green  i^  Robinson    v.    L'Engle,    13 

(N.  J.)    216  ;  Law  v.  Merrills,  Fla.  482. 

6  Wend.  (N.  Y.)  275.  20  Etterr.  Armstrong,  46  Ind. 

16  Jackson  v.  Cadwell,  1  Cow-  202. 

en  (N.  Y.)  639.  21  r  r  y   Graham,  ibid.  240. 

1"  Frier  v.  Jackson,  8  Johns. 


Chap.  I.]       OFFICE    OF   BILLS    OF   EXCEPTION.  497 

ruling  suppressing  depositions;  ^~  or  affidavits  in  sup- 
port of  a  motion  to  set  aside  a  default;  ^^  or  annexing 
documents  to  transcript,  even  with  the  consent  of 
parties  in  writing;  ^^  or  the  minutes  of  the  proceedings 
of  the  court,  signed  by  the  judge,  from  day  to  day.^ 
It  is  only,  in  general,  where  a  question  decided  is  pre- 
sented by  the  pleadings,  that  a  bill  of  exceptions  can 
be  dispensed  with.^'' 

§  621.  And  still  less  can  the  court  go  outside  of  a 
bill  of  exceptions,  in  general,  to  decide  upon  extra- 
neous matters.  The  only  appearance  of  variation  to 
this  rule  is  in  an  early  case  -(1810),  in  Pennsylvania, 
where  it  was  held  that  a  plaintiff  in  error  might  assign 
error  in  an  opinion  on  any  matter  material  to  the 
issue  appearing  on  the  bill  of  exceptions,  although  it 
was  not  particularized  in  stating  the  exceptions ;  ^^ 
and  one  in  Virginia  (1809),  where  it  was  held  that 
the  court  would  look  at  the  whole  record,  and  reverse 
a  judgment  for  any  error  apparent,  although  the  court 
may  have  decided  rightly  on  the  particular  point  to 
which  exception  was  taken.^^  Tliese  cases,  however, 
did  not  go  the  length  of  holding  that  a  court  might 
leave  the  record  and  decide  on  extraneous  matters, 
neither  appearing  on  the  regular  record,  nor  brought 
to  notice  by  a  bill.  The  general  rule  is,  that  the  court 
is  confined  to  the  bill  of  exceptions,  and  will  not  go 

22  Tragden    v.    Deckard,    45  ^6  Pecquet  v.   Pecquet's  Ex- 
Ind.  572.  ec'r,  17  La.  An.  204. 

23  Horn  V.  New,  63  111.  539.  27  ii,g,  Co.  /;.  Pratt,  2  Binney, 

24  Burdick   v.  Hunt,  43  Ind.  323. 

381.  28  Murdock?;.  Herndon's  Ex- 

25  Haraszthy  v.   Horton,   46     ec'r,  4  H.  &  M.  (Va.)  200. 
Cal.  645. 

32 


498  BILLS    OF   EXCEPTION.  [Part  III. 

beyond  it  in  such  matters  as  it  appropriately  brings 
up  for  review,  although  it  has  been  held,  in  Illinois, 
that  an  entry  upon  a  motion  to  dismiss  a  suit  may  be 
so  made  as  to  supersede  the  necessity  of  a  bill.^^ 

§  622.  Thus  the  Supreme  Court  of  the  United 
States,  in  Hinde's  Lessee  v.  Longworth,"^*^  said,  "It 
may  well  be  questioned  whether,  when  the  purpose 
for  which  the  evidence  is  offered  is  specifically  avowed, 
the  court  will  look  at  it  in  any  other  point  of  view,  or 
inquire  whether  it  might  not  be  proper  for  some  other 
purpose.  As  a  general  rule,  we  think  the  party  ought 
to  be  confined,  in  examining  the  admissibility  of  evi- 
dence, to  the  specific  objection  taken  to  it.  The  at- 
tention of  the  court  is  called  to  the  testimony  in  that 
point  of  view  only,  and  to  admit  an  inquiry  afterwards 
whether  the  evidence  might  not  have  been  admissible 
for  some  other  purpose,  would  be  sanctioning  a  course 
of  practice  calculated  to  mislead."  And  in  a  previous 
case  (1812)  the  court  remarked,  "  Each  bill  of  excep- 
tions must  be  considered  as  presenting  a  distinct 
substantive  case ;  and  it  is  on  the  evidence,  stated  in 
itself  alone  that  the  court  is  to  decide.  "We  cannot 
go  beyond  it  and  collect  other  facts  which  must  have 
been  in  the  mind  of  the  party,  and  the  insertion  of 
which  in  this  bill  of  exceptions  could  alone  have  sanc- 
tioned the  opinion  as  prayed  for."  ^^  And  the  Supreme 
Court  of  Maine  declares,  "  IS'o  question  which  is  not 
presented  by  the  bill  of  exceptions  is  open  for  consid- 
eration." ^^     And  that,  where  the  special  findings  of  a 

^  Randolph   v.    Emerick,   13         ^^Bxinlap  v Monroe,  1  Cramch, 
111.  344.  210. 

30  11  Wheat.  209.  32  ^i^ite  v.   Jordan,  21  Me. 

3t8. 


Chap.  I]        OFFICE    OF   BILLS    OF   EXCEPTIOX.  499 

jury  can  have  no  effect  but  to  raise  a  question  of  juris- 
diction, which  question  is  not  made  a  part  of  the  bill, 
the  exceptions  will  be  overruled.'^^  And  in  'New  York, 
"Although  all  the  evidence  given  at  the  trial  may  be 
contained  in  the  bill,  the  court  cannot  take  notice  of 
any  matter  that  is  not  specifically  stated  as  a  ground 
of  exception."  ^^  And  so,  in  that  state,  where  a  non- 
suited plaintiff  brings  error  thereon  upon  a  bill  of  ex- 
ceptions, the  court  will  not,  on  the  suggestion  of  the 
defendant  in  error,  examine  into  the  correctness  of 
other  decisions  made  by  the  court  below  to  sustain  the 
judgment,  the  only  questions  arising  being  such  as  the 
bill  sets  forth."^^  The  Supreme  Judicial  Court  of  Massa- 
chusetts observes,  "  If  it  [the  rule]  were  not  observed, 
it  would  be  to  make  this  the  court  of  original,  instead 
of  appellate  jurisdiction." ''''  And  where  there  is  a 
general  verdict  of  guilty,  "We  are  therefore  to  pre- 
sume that  all  the  facts  were  proved,  necessary  to  sus- 
tain that  verdict,  and  nothing  comes  before  this  court 
but  questions  of  law.  .  .  .  Bills  of  exception  are  not 
to  be  deemed  a  general  report  of  the  case,  and  are 
not  considered  to  embrace  any  more  of  the  facts 
proved  than  are  necessary  to  raise  the  points  of  law 
relied  upon.  To  any  other  part  of  the  case,  the  at- 
tention of  the  judge  who  allows  the  exceptions  is  not 
called."  ^^  In  ISTew  Jersey,  "  It  is  not  competent  for 
a  plaintiff  in  error  to  draw  into  question,  on  a  bill  of 
exceptions,  points  not  raised  or  objected  to  below. 

33  State  V.  Hinckley. 38  Me.25,         ^  Spaulding  v.  Alford,  1  Pick. 

34  Whiteside    v.    Jackson,    1     37. 

Wend.  420.  37  Cojjjpr,on^ealthr.  Stephens, 

85  Dean  v.  Gridley,  10  Wend.     14  Pick.  371. 
255. 


500  BILLS    OF    EXCEPTION.  [Part  IIL 

Every  motive  of  policy  and  convenience  forbids.  So 
does  the  nature  of  the  proceeding."  "**  Again,  "  If  the 
Sessions  had  any  legal  evidence,  we  never  inquire  into 
the  right  of  it,  but  take  it  as  they  did.  We  do  not 
allow  them  to  settle  the  law  for  us,  but  we  never  dis- 
pute the  facts  they  find,  nor  weigh  the  circumstances 
over  again  on  certiorari.''^  ^^  In  Virginia,  where  ex- 
ceptions are  taken  on  specific  points,  none  will  be 
examined  but  such  as  were  presented  to,  and  decided 
by,  the  court  below;  although,  from  the  matters 
stated  in  the  bill,  there  are  apparently  other  points 
which  might  have  been  raised.^'^  So,  in  Vermont,  it 
is  said,  "  If  any  question  is  to  be  made  as  to  the  com- 
petency of  testimony,  the  auditor  must  be  requested 
to  report  the  facts  necessary  to  raise  the  question ;  if 
he  refuse,  the  county  court  will  hear  affidavits.  But 
this  court  can  never  review  their  decision,  except  as 
to  questions  of  law  arising  on  the  report  and  bill  of 
exceptions."'*^  Thus,  in  Connecticut,  where,  in  an 
action  for  taking  property  of  plaintiif,  the  plea  was 
justification  under  a  tax-warrant,  which  was  admitted 
in  evidence,  the  plaintiff  on  various  grounds  objecting, 
but  not  on  the  ground  that  there  was  no  rate-bill 
annexed,  a  bill  of  exceptions  set  out  the  warrant,  un- 
accompanied by  any  rate-bill,  and  it  was  held  that  the 
want  of  the  rate-bill  could  not  be  assigned  as  error."*^ 
In  Kentucky,  it  was  said,  "  In  reviewing  the  decision 

38  Allen    V.    Smith,   Y   Halst.  ^^  Putnani   v.   Button,    8  Vt. 

168.  399. 

^^  Kingwood  v.  Bethlehem,  1  ^^pjc^g^  ^  Allen,  10  Conn 

Green,  229.  147. 

*•'  Newsum    v.    Newsum,     1 
Leigh,  86. 


Chap.  I]         OFFICE    OF   BILLS    OF   EXCEPTIOK".  501 

of  the  court  upon  the  plea  of  nul  tiel  record,  we  are 
not  at  Uberty  to  travel  out  of  the  record  before  us,  or 
presume  that  such  a  record  as  that  recited  in  the  scire 
facias  was  not  produced  in  evidence  to  the  court. 
"Without  being  made  so  by  bill  of  exceptions,  the 
record  alluded  to  in  the  scire  facias  forms  no  part  of 
the  record."  ^^  And  even  consent  of  parties  will  not 
give  the  court  authority  to  look  beyond  the  record.^* 
And  a  bill  must  not  be  loaded  with  extraneous  matter, 
beyond  what  is  essential  to  present  the  point  of  law.** 

§  623.  It  is  not  a  part  of  the  office  of  a  bill  of  ex- 
ceptions to  serve  as  a  supersedeas  in  the  case,  of 
itself.  Formerly  it  was  so  in  New  York,  at  least 
measurably.*^  But  it  is  not  so  now;  and  if  the  party 
presenting  the  bill  desires  to  stay  the  proceedings  of 
his  adversary,  he  must  obtain  an  order  to  that  effect.*^ 
And  w^here  an  order  granting  time  to  prepare  a  bill 
provided  for  a  stay  of  proceedings,  and,  before  the 
expiration  of  the  time,  another  order  was  made  ex- 
tending the  time,  but  saying  nothing  about  a  stay  of 
proceedings,  it  was  held  that  the  stay  was  limited  to 
the  time  allowed  in  the  first  order .*^  And  formerly, 
in  Georgia,  where  bond  was  given  or  affidavit  filed.*^ 

§  624.  Since  it  is  no  part  of  the  office  of  a  bill  of 

^^  Fowler  v.  Commonwealth,  ^'^  Seymour    v.    Slocum,     IS 

4  Mon.  129.  Wend.  609. 

**  Preble   v.   Eeed,    5    Shep.  ^^  Goodrich  v.  Downs,  5  Hill, 

(Me.)  112.  511. 

*^  Ex   parte  Jones,  8    Cowen  ^^  Doe  ex   dem.  v.  Peoples,  1 

(N.  Y.)  121.  Kelly.     But  see,  contra,  34  Ga. 

4*5  Moran  v.  Dawes,  4  Cowen,  101,  105,  and  19  Ga.  590,  where 

22  ;  Roosevelt  ?;.  Heirs, *!  Cowen,  held  that  a  party  is   not  even 

lot  ;  Jackson   v.   Varick,    ibid,  entitled    to   a  supersedeas  until 

412.  the  actual  filing  of  bill. 


502  BILLS    OF    EXCEPTION,  [Part  III. 

exceptions  to  bring  up  facts  for  controversy,  it  must, 
of  necessity,  import  absolute  verity,  so  that,  when  it  is 
signed  and  sealed,  the  truth  of  it  cannot  be  contro- 
verted,^"  not  even  where  counsel,  in  their  petition,  say 
that  it  is  not  correct,  and  was  not  seen  by  them  before 
it  was  signed.^^  And  where  it  is  disputed  as  to  how 
a  witness  testified,  and  the  opposite  party  affirms  that 
the  witness  did  not  testify  as  stated  in  the  bill,  it  is 
held  that  the  bill  is  conclusive  on  the  matter.'- 

§  625.  And  accordingly  a  bill  is  so  conclusive  in  its 
verity,  that  it  is  generally  held  that  it  will  even  con- 
trol the  record  itself,  where  there  is  a  discrepancy  or 
contradiction  between  them,  as  to  the  subjects  within 
the  province  of  the  bill;  as  where  there  is  a  conflict 
between  the  judgment  entry  and  the  bill,^^  or  where  a 
bill  is  taken  at  one  term  to  an  order  entering  judg- 
ment nunc  pro  tunc,  sustaining  demurrers  to  pleas 
after  argument  at  a  former  term,  but  there  was  no 
entry  of  recoi'd,  and  the  bill  recites  the  fact  of  the 
motion  to  enter  judgment  nunc  jpro  tunc,  and  its 
allowance  and  entry  of  judgment  accordingly,  and 
the  exception  taken  thereto,  while  the  record  contains 
an  entry  of  judgment  sustaining  the  demurrers  at  the 
term  when  the  demurrers  were  actually  sustained,  the 
bill  will  prevail  over  the  entry  of  the  record,  and  be 
regarded  as  containing  the  true  account.^*  It  is  oth- 
erwise in  Iowa.     (1  Iowa,  Greene,  5Q.) 

^0  Wheeler  v.  Winn,   53  Pa.  ^^  Vincent  v.  Rogers,  30  Ala, 

St.  126.  471  ;    Davidson    v.    Street,    34 

51  Ryan  v.   Burkam,  42   Ind.     Ala.  125. 

525.  ^  Rhodes  v.  Sherrod,  8  S.  & 

52  Law  V.   Merrills,  6  Wend.     M.  (Miss.)  97. 
276. 


Chap.  I.]         OFFICE    OF   BILLS    OF   EXCEPTIOIT.  503 

§  626.  In  error,  bills  are  only  brought  before  the 
court  by  a  wi'it  of  error.  And  hi  a  case  in  iNTew 
York,  in  1805,  where  counsel  attempted  to  bring  on 
an  argument  on  a  bill  of  exceptions,  although  no  writ 
of  error  was  sued  out,  the  court  responded  in  a  de- 
cision almost  as  terse  and  laconic  as  Caesar's  cel- 
ebrated veni,  vidi,  vici.  Said  they,  "  Take  back  your 
cases.  There  is  no  Us  pendens.^^  ^^  Yet  there  seems 
no  good  reason  why  parties  may  not  enter  a  voluntary 
appearance,  and  bring  up  the  record,  as  service  may 
be  waived  in  a  court  below. 

§  627.  The  oflSce  of  a  bill  of  exceptions  is  confined 
strictly  to  the  suit  to  which  it  belongs.  Separate 
suits  cannot  be  blended,  unless  the  parties  are  the 
same.^*^  ^or  can  a  bill  be  introduced  into  another 
suit  as  ev'idence.^^  ^NTor,  where  a  bill  of  exceptions 
has  been  taken,  and  then  a  new  trial  granted,  on 
which  the  same  points  again  occur,  can  the  bill  be 
used  to  bring  up  the  proceedings  of  the  new  trial 
before  the  Supreme  Court.  In  such  case,  the  excep- 
tions must  be  taken  the  second  time.^^ 

In  Maryland,  it  has  been  held  that  separate  bills, 
even  in  the  same  case,  are  to  be  treated  as  distinct 
and  independent,  unless  they  establish  a  connection 
by  referring  one  to  another."^  Where  there  are  such 
references,  the  whole  series  will  be  regarded  as  one;  *^ 

^  Bradt   v.   Gray,    3   Caines,  ^^  Harrnison  v.  Clark,  1  Scam. 

170.  (111.)  131. 

^  Mayberry   v.    Morse,   &c.,  ^^  Gist's  Adm'r  v.  Cockey,  7 

39_Me.  105  ;  Codman  v.  Strout,  Han.  &  Johns.  141. 

&c.  9  Shep.  (Me.)  292.  60  Doe   ex  dcm.  v.  Gildart,  5 

57  Shotwell   V.    Hamblin,     23  How.  (Miss.)  606. 
Miss.  ]56. 


504  BELLS    OF    EXCEPTION.  [Part  III. 

as,  for  example,  referring  to  the  charge  contained  in 
another  bill,^^  or  a  bill  stating  objections  to  the  admis- 
sion of  certain  evidence,  "  on  the  grounds  and  reasons 
set  out  in  the  third  instruction  asked,"  which  instruc- 
tion was  embodied  in  another  bill.*'^  But  the  better 
way  is  to  embody  the  whole  in  one  bill.  (Lindsay  v. 
Henderson,  27  Miss.  502.) 

§  628.  But  a  bill  cannot  thus,  by  reference,  make 
other  papers  a  part  of  itself.  The  Supreme  Court  of 
Wisconsin  remarked  in  a  certain  case  that  "  the  prac- 
tice of  sending  up  loose  papers,  and  treating  them  as 
a  part  of  the  bill  of  exceptions,  without  stipulations 
to  cure  the  defect,  is  becoming  quite  too  common,  and 
cannot  be  approved  by  the  court,  even  if  counsel  take 
no  objection  to  it."  ^^  But  an  express  stipulation  is 
held  by  that  court  to  be  sufficient  to  extend  a  bill  over 
papers  not  actually  incorporated  in  it.*^ 

Where  a  bill  refers  to  transcripts  of  the  record 
which  are  not  certified  with  the  record  as  a  part  of  it, 
although  attached  to  the  transcript,  they  will  not  be 
considered  by  the  court.*"'®  And  where  documents  were 
alluded  to  as  used  on  the  trial  below,  it  was  remarked, 
on  error,  that  the  "  court  cannot  in  this  way  be  put 
upon  a  search  after  such  papers.  They  should  be 
made  a  part  of  the  exceptions,  if  they  are  its  neces- 
sary concomitants;  otherwise  they  should  not  be 
alluded  to."*"^ 

^1  St.    Johnsbury    v.    Water-  ^*  Martin  v.  Improvement  Co. 

ford,  15  Vt.  692.  ibid.  552. 

^2  Spencer?'.  Pilcher,  8  Leigh.  ^^  Quigley    v.   Campbell,    12 

(Va.)  566.  Ala.  58. 

^2  Orton  V   Noonan,  19  Wis.  ^^  Wyman   v.  Wood,  25  Me. 

356.  438  ;  also  7  S.  &  M.  (Miss.)  630. 


CiiAP.  ].]  OFPICE    OF   BILLS    OF   EXCEPTION".  505 

It  seems,  however,  in  Illinois,  a  reference  will  an- 
swei',  if  the  papers  are  so  specifically  referred  to  by 
the  bill  as  to  leave  no  reasonable  donbt  of  the  identity 
thereof,  and  that  the  party  intends  to  rely  upon  them 
in  support  of  his  case.^^ 

It  is  not  sufficient  that  places  are  pointed  out  in  the 
bill  for  the  insertion  of  documents  indicated  by  the 
words  "Here  insert."  If  the  bill  does  not  contain 
them,  they  will  not  be  noticed/'^ 

Where  a  clerk  states  merely  that  certain  papers 
were  read  in  evidence,  this  does  not  bring  them  into 
the  record  ;^^  nor  where  a  clerk  transcribed  certain 
records  intended  to  be  embraced  in  the  bill  of  excep- 
tions, and  stated  that  they  "were  the  records  and 
executions  referred  to  in  the  bill  of  exceptions.""" 
And  where  a  reference  to  deeds  and  instruments  was 
by  means  of  letters  of  the  alphabet,  the  court  thereon 
remarked,  "We  must  premise,  in  this  case,  that  the 
bill  of  exceptions  is  very  defective.  It  refers  to  cer- 
tain instruments  introduced  on  the  trial,  designating 
them  as  being  marked  by  certain  letters  of  the  alpha- 
bet, but  the  instruments  are  not  incorporated  in  the 
bill  of  exceptions.  Certain  instruments  of  a  like 
description  have  been  inserted  in  the  record;  but 
whether  they  are  the  same  used  on  the  trial,  we  can- 
not know,  as  they  are  not  communicated  to  this  court 
through  the  proper  medium.     We  should,  therefore, 

6'  Hatch    V.   PDtter,    2    Gil.         ^^  Carmichael  v.  Brown's  Ad- 

121.  m'rs,  4  How.  (Miss.)  431 

6^  Berry    v.    Hale,    1     How.  ''^  Maulding  v.  Rigby,  4  How. 

(Miss.)  318.  (Miss.)  222. 


506  BILLS   OF   EXCEPTION".  [Part  III. 

feel  much  reluctance  in  reversing  the  judgme.  its  were 
the  errors  ever  so  glaring."  "^ 

And  so  it  behooves  the  party  excepting  to  see  to  it 
that  copies  of  all  papers  referred  to  in  the  bill  are 
actually  appended  thereto  before  appearing  in  the 
appellate  court.'^ 

And  thus  evidence  cannot  be  made  part  of  a  bill  by 
reference  to  the  lines  of  the  transcript,  where  it  may 
be  found/^  or  page  of  the  record."* 

§  629.  There  is  a  singular  exception  in  California, 
where  it  is  held,  that,  in  the  absence  of  a  bill  of  ex- 
ceptions or  agreed  statement  of  facts,  the  evidence 
taken  on  motion  of  a  party  by  the  clerk  in  wiiting 
may  be  certified  in  a  transcript,  and  will  thus  serve  as 
a  substitute  for  a  bill.^^ 

§  630.  A  made  "  case  "  will  not  answer  instead  of 
a  bill,  and  fulfil  the  ofiice  thereof  in  the  United  States 
courts,  but  it  must  be  actually  turned  into  a  bill. 
And  so,  where,  in  a  very  important  case,  a  verdict 
was  given  for  the  plaintifi*,  subject  to  the  opinion  of 
the  court  on  a  case  to  be  made  containing  the  questions 
of  law  and  a  reservation  of  the  right  to  either  party, 
after  the  court  should  decide  thereon,  to  turn  the  case 
into  a  bill  of  exceptions,  and  a  motion  for  a  new  trial 
and  judgment  entered  for  the  plaintiff",  the  defendant 
sued  out  a  writ  of  error.  Inadvertently  the  case  was 
annexed  to  the  record  without  changing  it  into  a  bill; 
and  neither  party  observing  the  omission,  the  case  was 

'1  Pickett  V.  Doe.  5  S.  &  M.  '*  Hopkins  v.   Turnpike    Co. 

(Miss.)  486.  46  Ind.  188. 

''"^  Frost  V.  Bates,  16  Vt.  145.  "'^  Ingraham  v.  Gildermester, 

'3  R.  R.  V.  Griffin,  45  Ind.  369.  2  Cal.  161. 


Chai'.  I.]         OFFICE    OF   BILLS    OF    EXCEPTION.  507 

argued  in  the  Supreme  Court  on  the  merits.  The 
court  noticed  the  defect,  however,  and  affirmed  the 
judgment  below  on  that  ground.  Afterwards,  inas- 
much as  it  was  the  result  of  inadvertence,  the  Circuit 
Court  of  the  United  States  allowed  the  defendant  to 
turn  the  case  into  a  bill  of  exceptions  on  payment  of 
the  costs  in  the  Supreme  Court."°  Exceptions  before 
a  referee,  in  ^ew  York,  to  his  decisions,  which  excep- 
tions appear  in  a  case  made  for  the  purpose  of  obtain- 
ing a  new  trial,  do  not  constitute  a  bill  of  exceptions."^ 
And  it  is  imperative  that  a  case  be  turned  into  a  bill 
before  the  Court  of  Appeals  will  entertain  it."^  In 
the  Superior  Court  of  the  city  of  ]N'ew  York,  it  is  held, 
that  where  exceptions  are  taken  in  good  faith,  with  a 
view  of  insisting  on  them  at  bar,  and,  if  necessarj^,  in 
an  appellate  court,  leave  will  be  given  to  turn  a  case 
into  a  bill  of  exceptions,  although  the  case,  as  pre- 
pared, omitted  to  provide  such  leave  ."^  Nevertheless, 
it  seems  that,  in  the  Supreme  Court,  it  is  not  a  matter 
of  course  to  allow  a  party  to  turn  a  case  into  a  biU, 
although,  while  the  Supreme  Court  will  act  finally  on 
the  case  itself,  the  Court  of  Appeals  will  only  act  on 
it  when  turned  into  a  bill.  It  is  held  dependent  on 
the  questions  involved  and  the  importance  of  the 
case;  and  so,  where  a  case  was  judged  not  of  im- 
portance enough  to  go  to  the  Court  of  Appeals, 
leave  was  denied.^*^  But  this  looks  like  a  very  uncer- 
tain standard  of  discretion.     Previously,  however,  it 

'^  Williamson  v     Suydam,  4  ''^  Oakley    v.    Aspinwall,     1 

Blatch.  (C.  C.)  323  Sand.  694. 

77  Allen  V.  Way,  7  Barb.  585.  80  ci^rk   v.   Brown,    1    Barb. 

78  Livingston    v.    Radcliff,    2  215. 
Conn.  189. 


508  BILLS    OF   EXCEPTIOI^'.  [Part  III. 

was  held  that  a  Circuit  Court  had  no  right  to  refuse  a 
party  the  right  to  make  a  case  subject  to  be  turned 
into  a  bill,  although,  where  both  a  case  and  bill  were 
brought  to  the  Supreme  Court,  the  party  was  made  to 
elect  which  he  would  argue.^^  The  rule  is  thus  stated 
as  to  the  Supreme  Court  and  Court  of  Errors:  "If 
the  parties  are  content  to  abide  by  the  decision  of  the 
Supreme  Court,  they  repose  themselves  upon  the  case 
agreed  upon  between  them.  But  if  they  contemplate 
ulterior  measures  in  given  events  for  the  review  of 
the  judgment,  they  resume  the  right  to  turn  the  case 
into  a  bill  of  exceptions  or  special  verdict,  to  enable 
them  to  bring  the  questions  to  this  court  for  revis- 
ion." ^~  And  if  difficulties  occur  in  turning  the  case 
thus,  it  is  intimated  that  a  party  is  entitled  to  the 
aid  of  the  court,  to  which  the  jurisdiction  belongs, 
in  removing  them.^^ 

§  631.  It  is  held  that,  in  a  criminal  case  in  New 
York,  the  right  to  a  bill  of  exceptions  is  purely  stat- 
utory, and  its  office  is  to  bring  up  for  review  questions 
of  law  decided  on  the  trial  and  confined  to  the  main 
issue,  not  extending  to  prelhninary  or  collateral  ques- 
tions, such  as  challenges  to  the  array,  motions  to 
quash  the  indictment  for  irregularity,  &c.^ 

§  632.  In  Massachusetts,  a  bill  of  exceptions  sus- 
pends the  right  of  appeal  on  the  ground  that  it  is  a 
substitute  for  an  appeal,  or  rather  a  peculiar  mode  of 
it,  and  inconsistent  with  the  right  of  appeal  in  the 
common  form.^ 

^^  Root    V.   King,    8    Cowen,  ^^  Law  v.  Jackson,  ibid.  150. 

125,  ^*  Wynhamer   v.  People,  20 

^2  Seward  v.  Jackson,  8  Cow-  Barb.  567. 

en,  411.  ^^  Sale  v.  Pratt,  19  Pick.  104 


Chap    II.]  EIGHT   OF   EXCEPTING,   ETC.  509 

CHAPTER   n. 

The  Right  oe  Excepting,  and  "Waiver  thereof. 

§  633.  The  right  of  excepling  is  confined  to  the 
parties  on  the  record.  And  in  a  road  case,  where  two 
towns  not  parties  to  the  proceedings  below  filed  ex- 
ceptions in  the  appellate  court,  that  conrt  remarked, 
"  The  inhabitants  of  St.  Albans  and  of  Cambridge  did 
not  litigate  the  subject-matter  of  this  petition  before 
the  county  commissioners.  They  were  neither  *  par- 
ties, petitioners,  nor  respondents '  in  that  court.  They 
entered  no  appearance.  They  neither  appealed,  nor 
had  a  right  to  appeal,  from  any  decision  the  county 
commissioners  made  or  might  have  made.  They  made 
themselves  in  no  event  liable  for  costs.  Their  names 
are  not  upon  the  docket  of  this  court  as  parties.  From 
aught  that  appears,  any  other  town  in  the  county 
might  with  equal  propriety  have  contested  the  accept- 
ance of  this  report,  and  are  equally  parties  to  the 
record.  It  would  be  an  anomaly  in  judicial  proceed- 
ings to  permit  mere  strangers,  not  parties,  either  as 
petitioners  or  respondents,  not  privies  in  interest  to 
any  party,  who  have  not  entered  their  appearance, 
and  who  have  not  become  amenable  to  the  jurisdiction 
of  the  court,  into  the  contests  of  others  at  their  own 
will  and  pleasure.  The  inhabitants  of  St.  Albans  and 
of  Cambridge  are  in  no  condition  to  interfere  with 
the  disposition  of  this  appeal,  or  to  except  to  any  rul- 
ing or  decision  of  the  justice  presiding." 


510  BILLS    OP    EXCEPTIOJT.  [Part  III. 

But,  still  more  singularly,  the  commissioners  them- 
selves did  the  same  thing,  their  decision  having  been 
reversed  by  a  committee  appointed  by  the  Supreme 
Court.  And,  on  their  appearance  to  sustain  their 
decision,  the  court  remarked,  "  The  county  commis- 
sioners are  public  agents,  whose  duties  are  clearly  set 
forth  and  defined.  This  is  an  appeal  from  their  de- 
cision. They  were  no  parties  to  the  petition  when 
pending  before  them ;  they  could  not  enter  an  appear- 
ance in  their  own  court,  or  become  before  themselves 
either  petitioners  or  respondents.  In  adjudicating 
upon  the  petition  they  acted  judicially.  "When  the 
appeal  was  taken,  the  ultimate  decision  of  the  matter 
was  withdrawn  from  their  jurisdiction.  It  is  no  part 
of  their  duty  to  pursue  appellants  from  their  court, 
and  to  litigate  in  this  with  parties  dissatisfied  with, 
and  contesting  the  propriety  of,  their  adjudications  at 
the  public  charge,  or  to  except  to  the  decisions  of  any 
justice  of  this  court  in  accepting  a  report  of  its  com- 
mittee by  which  their  proceedings  have  been  re- 
versed." ^ 

§  634.  On  a  like  principle,  where  an  attorney  is 
improperly  excluded  from  conducting  a  trial  below, 
and  excepts  for  himself  to  the  ruling,  the  exception 
will  avail  nothing  for  his  client  in  any  way.^ 

§  635.  In  Alabama,  it  is  held  that  an  appellee  will 
not  be  allowed,  even  with  the  consent  of  the  appellant, 
to  make  cross  assignments  of  error,  unless  he  reserved 
a  bill  of  exceptions  to  the  rulings  of  the  court  below; 
and  it  is  not  sufficient  that  his  exceptions  are  stated 

1  Selectmen  of  Riplej,  39  Me.  ^  jjQgpni^aum  v.  McThomas, 
351.  34  Yn&.  333. 


Chap.  II.]  EIGHT    OF   EXCEPTESTG,  ETC.  511 

in  the  appellant's  bill."^  But  in  Tennessee  the  rule  is 
the  reverse  of  this.^  And  so,  in  Kentucky,  where 
both  parties  objected  to  an  instruction  below,  but  only 
one  of  them  brought  up  a  bill,  and  contended  that  the 
other  had  no  right  to  assign  errors  thereon,  the  court 
held  that  the  other  had  such  right.^  And,  in  Massa- 
chusetts, if  an  entr}^  be  made  by  one  filing  exceptions, 
it  is  sufficient  for  both.*"'  Wliere  both  parties  filed 
exceptions,  and  the  plaintiff  prevailed  on  the  defend- 
ant's exceptions  and  waived  his  own,  the  defendant 
was  not  allowed  costs  upon  the  plaintiff's  exceptions.^ 

§  636.  In  criminal  cases  only  the  defendant  can 
file  exceptions.^ 

§  637.  As  to  waiver  expressly  made,  it  is  held  that, 
where,  on  the  overruling  of  a  motion  for  a  new  trial, 
and  time  given  to  file  a  bill  of  exceptions,  one  of  the 
parties  making  the  motion  causes  an  entry  to  be  made 
of  record  that  he  withdraws  the  motion,  and  waives 
leave  to  file  a  bill  of  exceptions,  he  cannot,  on  appeal, 
assign  error  on  the  overruling  of  the  motion,  or  pre- 
sent any  question  reserved  by  a  bill  of  exceptions 
taken  by  a  co-defendant.^ 

§  638.  There  are  various  forms  of  implied  waiver, 
usually  not  intended  by  the  party,  where  it  is  strictly 
implied.  '  For  example,  if  a  party  grounds  an  excep- 

•'^  Leslie  V.   Langham's  Ex'rs,  ■<  Dewey  y.  Humphrey,  5  Pick. 

40  Ala.  524.  187. 

^   Williams    v.     Bowdon,     1  ^  Commonwealth     v.      Cum- 

Swann,  286.  mings,  5  Cush.    (Mass.)    212; 

^  Turner  V.  Patterson, 5  Dana,  State  v. Hand,  1  Eng.( Ark.)  169  ; 

292.  People  v.  Royal,  1  Scam.  (111.) 

<5  Shattnck  v.  Woods,  1  Pick.  65T. 

176  (n.).  ^  Makepeace  v.  Davin,  27  Ind. 

352. 


512  BILLS    OF   EXCEPTIOI^.  [PAnT  III. 

tion  on  a  deficiency  of  evidence  on  the  part  of  his 
adversary,  which  is  well  founded,  and  yet  erroneously 
overruled,  and  he  afterwards  proceeds  and  supplies 
the  deficiency  by  evidence  produced  by  himself,  he 
waives  or  overrules  his  own  exception.^"  So,  where  a 
court  erroneously  ruled  that  the  plaintiff's  witness 
could  not  testify  unless  the  plaintiff  (administrator) 
should  elect  to  do  so,  and  he  excepts  to  the  ruling, 
but  afterwards  does  testify,  the  ground  of  the  excep- 
tion was  removed."  And  so,  in  a  prosecution  under 
a  penal  statute,  where  the  prosecution  abandons  a 
count,  so  as  to  render  a  question  excepted  to  wholl}'' 
nugatory,  the  abandonment  takes  away  the  right  of 
exception.'^ 

§  639.  The  most  usual  waiver  is  by  a  motion  for  a 
new  trial.  This  is  held,  in  the  United  States  courts, 
to  be  a  waiver,  even  if  exceptions  are  taken  and 
signed.  Says  Mr.  Story,  "The  motion  of  a  new  trial 
cannot  be  entertained  according  to  the  practice  of  the 
court,  unless  the  bill  of  exceptions  is  waived.  The 
party  has  his  election  either  to  proceed  on  the  writ  of 
error  to  the  Supreme  Court,  in  order  to  have  it  deter- 
mined there  whether  the  points  were  correctly  ruled 
at  the  trial,  or,  waiving  that  remedy,  to  apply  here  for 
a  new  trial.  But  he  cannot  be  permitted  to  proceed 
both  ways."^^  And  more  especially  by  an  acceptance 
of  a  new  trial  granted  on  the  motion  of  the  acceptor 
in  the  court  below.     It  is  thus  explained  by  the  Su- 

^'^  Prescottu.  Hayes,  43  N.  H.  ^^  Commonwealth  r.  Lincoln, 

598.  9  Gray,  288. 

^1  Reed  v.  Spaulding,  42  N.H,  ^^  Cunningham  v.  Bell,  5  Mar 

114.  son  (C.  C.)  161. 


Chap.  II. ]  RIGHT    OF   EXCEPTING,   ETC.  513 

preme  Court  of  Massachusetts :  "  The  exceptions 
taken  by  the  defendants  at  the  first  trial  of  this  case 
were  waived  and  abandoned  by  their  acceptance  of 
the  new  trial  which  was  granted  on  their  motion. 
This  is  the  necessary  resnlt  of  the  order  of  the  court 
setting  aside  the  verdict.  The  exceptions  to  the  rul- 
ings on  which  the  verdict  was  founded  foil  with  it. 
In  truth,  exceptions  are  in  effect  nothing  more  than  a 
motion  for  a  new  trial  on  the  ground  of  error  in  law, 
the  only  difference  between  the  two  being  that  the 
latter  is  addressed  to  the  discretion  of  the  court  be- 
fore which  the  case  was  tried,  while  the  former  lie  as 
a  matter  of  right  to  the  court  for  the  correction  of 
errors.  But  in  either  case,  only  one  of  two  results 
can  be  obtained.  The  court  must  either  set  aside  or 
affirm  the  verdict.  If  the  defendants  should  now  be 
permitted  to  go  on  and  prosecute  their  exceptions 
taken  at  the  first  trial,  they  would  gain  no  practical 
advantage  thereby.  If  successful  in  maintaining 
them,  this  court  could  pass  no  effectual  order,  and 
render  no  judgment  in  reversing  the  rulings.  The 
verdict  having  been  set  aside,  there  is  nothing  left  on 
which  an  order  sustaining  the  exceptions  can  operate. 
Nor  is  this  all.  Not  only  has  the  first  verdict  been 
set  aside  absolutely,  but  a  new  verdict  has  been  since 
obtained  against  the  defendants,  founded  on  a  differ- 
ent state  of  facts,  and  involving  different  principles 
of  law.  That  will  still  remain  after  the  previous  ex- 
ceptions shall  have  been  disposed  of,  and  it  is  the  only 
verdict  that  now  stands  against  the  defendants;  so 
that  the  points  raised  at  the  first  trial,  and  embraced 
in  the  exceptions,  are  only  moot  questions,  and  do  not 
33 


514  BILLS    OF    EXCEPTION.  [Part  III. 

in  any  way  affect  the  present  disposition  of  the  case, 
which  must  depend  on  the  correctness  of  the  rulings, 
under  whicli  the  last  verdict  was  rendered."  ^* 

§  640.  Before  the  commencement  of  his  argument, 
a  defendant  offered  the  court  a  written  request  for 
an  instruction.  During  the  argument,  the  judge 
announced  that  he  would  charge  as  requested,  with 
one  qualification;  to  which  qualification  the  defend- 
ant replied  that  he  would  not  except.  But,  on  deliv- 
ering the  charge,  the  defendant  did  except  to  the 
qualification:  whereon  the  judge  requested  him  to 
point  out  the  difference  between  the  oral  statement  of 
the  qualification,  to  which  he  had  assented,  and  the 
subsequent  written  statement,  and  suggested  that 
thereon  the  court  might  revise  the  phraseology,  but 
he  declined  to  suggest  any  change.  It  was  held  that 
this  refusal  of  the  defendant  to  point  out  the  alleged 
variance  was  a  waiver  of  any  right  of  exception.^^ 

§  641.  A  plaintiff  may  take  a  nonsuit  by  consent, 
with  the  liberty  to  move  to  set  it  aside,  without  losing 
the  right  to  his  exceptions.  "This  course  is  often 
adopted  [in  some  states]  when  it  is  evident  from  the 
rulings  of  the  court  that  the  plaintiff  cannot  recover, 
and  a  motion  for  a  nonsuit  is  not  made  by  the  adverse 
party."  ^^ 

642.  In  general,  as  we  shall  have  occasion  to  notice 
more  at  large  in  a  subsequent  chapter,  objections  to 
the  regularity  of  proceedings,  or  to  the  competency 

14  Seccomb  v.  Ins. Co.  4  Allen,  i«  Natoma  Water,  &c. ,  Co.  v 
154.  Clarkin,  14  Cal.  649. 

15  Coleman  v.  R.  R.  Co.  106 
Mass.  160. 


Chap.  II.]  EIGHT    OF   EXCEPTING,  ETC.  515 

of  a  tribunal  having  general  jurisdiction  of  the  sub- 
ject, will  be  considered  as  waived  unless  shown  to 
have  been  taken  at  the  earliest  practicable  moment 
after  the  fticts  on  which  they  rest  become  known  to 
the  party  taking  them.'''  Indeed,  it  is  an  inflexible  rule, 
that  even  comparatively  slight  laches  destroy  the  right 
of  excepting. 

643.  Where  assignments  of  error  are  not  argued 
or  supported  by  authority,  they  may  be  regarded  as 
waived.'^  But  where  a  defendant  has  joined  in  error, 
that  joinder  does  not  operate  as  a  waiver  of  the  right 
to  move  to  strike  out  a  bill  of  exceptions  filed  out  of 
time.''' 

644.  Where  a  bill  set  out  the  evidence  and  excep- 
tions to  the  admissibility  of  some  portions  of  that 
evidence,  and  then  recited  an  agreement  between  the 
parties  on  the  trial  discharging  the  jury,  and  provid- 
ing that  if,  in  the  opinion  of  the  court,  the  law  upon 
the  facts  in  evidence  was  with  the  plaintiff,  judgment 
should  be  rendered  for  him,  othermse  for  the  defend- 
ant, and  finally  recited  the  judgment  in  favor  of 
plaintiff",  and  defendant's  exceptions  thereto,  it  was 
held  that  the  agreement  was  a  waiver  of  all  previous 
objections  and  exceptions  to  the  admissibility  of  evi- 
dence, and  that,  accordingly,  under  the  agreement, 
the  court  was  bound  to  take  the  facts  which  the  evi- 
dence tended  to  prove  as  the  admitted  facts  of  the 


^"  Gilmanton     v.    Hann,    38  ^^  Farrar  v.  Finney,  21  Mo. 

N.  n.  108.  672. 

^8  Payne  v.  McClain,  1  Ind.  20  Qibsont^.Land,  27  Ala.  118. 
139. 


516  BILLS    OF   EXCEPTION".  [Pakt  III. 

§  645.  Wliere  special  causes  of  exception  are  as- 
signed, others  not  assigned,  which  do  not  go  to  the 
foundation  of  the  action,  will  be  considered  waived.^^ 

§  6^6.  In  Maine,  if  a  party  in  the  District  Court, 
before  offering  any  written  exceptions  for  signature, 
after  verdict  moves  for  a  new  trial,  and  procures  an 
adjudication  upon  it,  it  is  a  waivci-  of  the  right  to 
have  the  exceptions  certified;  and  if  they  are  actu- 
ally certified  afterwards  by  the  judge,  the  appellate 
court  will  not  consider  them.-^ 

§  647.  In  England,  where  one,  who  has  on  the  trial 
tendered  a  bill  of  exception,  brings  a  writ  of  error 
before  it  is  signed,  he  thereby  waives  it,  and  will 
not  be  allowed  to  append  it  to  the  record.-^ 

§  648.  In  Kentucky,  it  has  been  held  that  where 
objections  were  offered  to  depositions,  and  no  excep- 
tion was  taken  to  the  decision  of  the  judge  overruling 
the  objections,  the  admissibility  thereof  will  not  be 
considered  by  the  appellate  court,^^  the  rule  herein 
being  the  same  as  to  written  and  oral  evidence.  And 
this,  doubtless,  is  the  general  rule. 

§  649.  Where  a  party  in  Massachusetts  moves  for 
a  new  trial  on  the  gi'ound  of  a  misdirection  of  the 
jury  in  a  matter  of  law,  and  the  motion  is  overruled, 
he  cannot  afterwards  allege  exceptions  to  that  mis- 
direction.^^ And  this,  too,  is  the  general  rule,  although 
in  some  states,  as  in  Arkansas,  the  party  may  set  out 

21  Teas  V.  McDonald,  13  Tex.  ^4  Gaines  v.  Wiggs,  9  Bal 
349.  lou,  282, 

22  Ellis  V.  Warren,  35  Me.  125.  25  Sylvester  v.  Mayo,  1  Cush 

23  Dillon  V.  Roe,  1    Bing.  IT,  308. 
cited  in  Meese  v.  Levis,  13  Pa. 

St.  388. 


Chap.  II.]  EIGHT    OF   EXCEPTING,  ETC.  517 

the  evidence,  and  reserve  his  previous  exceptions  in 
a  bill  of  exception  to  the  decision  refusing  the  new 
trial.^''' 

§  650.  Where  a  party  takes  a  voluntary  nonsuit, 
he  is  out  of  court,  and  cannot  afterwards  file  a  bill 
of  exceptions.^' 

§  651.  "Where  a  plea  is  received  against  objection 
by  the  plaintiff,  who  excepts  to  the  decision,  and  then 
takes  issue  in  fact  on  the  plea,  it  is  held,  in  Yirginia, 
that  the  taking  issue  does  not  operate  as  a  waiver  of 
the  exception.^^  I  suppose,  however,  that,  in  most 
states,  such  an  exception  would  not  be  required,  ■  a 
demurrer  saving  itself. 

§  652.  Where  a  plaintiff  objects  to  the  admission 
of  evidence,  and  the  objection  is  sustained  by  the 
court,  whereon  the  plaintiff  offers  to  withdraw  his 
objection,  and  admit  the  evidence,  but  the  defendant 
refuses  to  examine  the  witness,  and  excepts  to  the 
decision  of  the  court,  the  exception  will  not  be  enter- 
tained, being  waived  by  his  own  act.^'' 

§  653.  In  'New  Jersey,  it  has  been  held,  that,  on  a 
motion  for  new  trial,  the  entire  bill  of  exceptions  need 
not  be  abandoned,  but  only  so  much  as  relates  to  the 
specific  grounds  on  which  the  new  trial  is  sought. 
The  court  remark  on  this,  "The  law  is  not  that  a 
party  cannot  move  for  a  new  trial  on  any  matter  con- 
tained in  the  bill  of  exception  without  waiving  his 
entire  bill,  but  only  that  the  court  will  not  entertain 

-^  Sawyers  v.  Lathrop,  4  Eng.  28  Campbell's  Adm'x  v.  Mont- 
hs, gomery,  1  Robinson,  392. 

^"^  People  ex  rel.   v.  Browne,         ^9  Ligget  v.  Bank,  1  Serg.  & 

3  Gil.  87  ;  Lombard  v.  Cheever,  Rawles  (Pa.)  218. 
ibid.  469. 


518  BILLS    OF    EXCEPTION.  [Part  III. 

a  motion  for  a  new  trial,  or  in  arrest  of  judgment  on 
any  point  on  which  a  bill  of  exceptions  has  been 
allowed,  unless  the  party  maldng  such  motion  will 
waive  that  exception.  And  in  this  court,  in  the  case 
of  Ogden  v.  Gibbons,  the  defendant  was  heard  on  a 
motion  for  a  new  trial  on  several  points  of  law  con- 
tained in  the  bills  of  exception  on  his  waiving  so 
much  of  the  bills  as  involved  the  same  matters;  and, 
though  a  new  trial  was  refused,  he  afterwai'ds  suc- 
cessfully prosecuted  a  writ  of  error  on  his  remaining 
bilFs.  It  is,  or  ought  to  be,  the  object  of  this  and 
of  every  other  court  of  justice  to  get  at  the  truth 
and  right  of  the  matter.  If,  therefore,  a  party  has 
two  distinct  legal  objections  to  a  judgment  against 
him,  on  one  of  which,  perhaps,  the  opinion  of  this 
court  has  been  previously  intimated,  or  is  supposed 
to  be  Ivuown,  and  on  which,  for  that  reason,  the  suitor 
wishes,  if  ultimately  necessary,  the  judgment  of  a 
higher  tribunal,  why  should  this  court  refuse  to  hear 
him  on  the  other  point  of  law,  unless  he  will  consent 
to  submit  both  matters  definitively  to  our  decision? 
'Would  it  not  look  like  an  unwillingness  to  subject 
our  opinions  to  the  ordeal  of  an  appellate  tribunal, 
or  like  refusing  to  hear  a  party  except  on  terms  incon- 
sistent with  the  pure  and  disinterested  administration 
of  justice?  "'^^ 

§  654z.  While  it  is  held,  also,  in  Alabama,  that  the 
court  ought  not  to  grant  a  new  trial  for  causes  em- 
braced in  a  bill  of  exceptions,  unless  the  party  will 
waive  the  exceptions,  yet  if  the  court  does  not  ex- 

30  Mann  v.  Glover,  2  Green  (N.  J.)  198. 


Chap.  III.]  COITSTKUCTION^   OF   BELLS.  519 

pressly  require  such  waiver,  but  allows  the  exception, 
and  then  overrules  the  motion  for  a  new  trial,  the 
appellate  court  will  entertain  the  exception  never- 
theless.'^^ 

§  655.  It  seems  that,  in  Massachusetts,  an  excep- 
tion to  a  ruling  requiring  a  party  to  prove  the  execu- 
tion of  an  instrument,  cannot  be  sustained,  if  the 
party  subsequently  prove  such  execution.''^  But  this 
appears  exceptional.  And  if  a  plaintiff  excepts  to  the 
ruling  of  the  judge,  and  afterwards  amends  his  decla- 
ration, changing  the  form  of  the  action  and  the  issue 
to  be  tried,  so  that  the  ruling  becomes  immaterial, 
and  the  defendant  prevails  on  the  merits,  the  excep- 
tion taken  is  no  longer  open  to  the  plaintiff.^^ 


CHAPTER    m. 

Construction  of  Bills. 

§  656.  Although  the  reasons  are  given  in  a  bill 
which  influenced  a  judge  to  give  his  decision,  these 
reasons  are  not  to  be  regarded  as  a  part  of  the  record, 
or  be  considered  by  the  court.  "  The  object  of  a  bill 
of  exceptions  is  twofold:  first,  it  is  to  object  to  the 
opinion  of  the  court  on  some  point  of  law,  and  refers 
generally  to  the  competency  of  witnesses,  the  admis- 

31  West  V.  Cunningham,  9  ^  Cook  v.  Castner,  9  Cush. 
Port.  104.  266. 

^2  Commonwealth  v.  Putnam, 
4  Gray,  16. 


520  BELLS   OF   EXCEPTION.  [Pakt  III. 

sibility  of  evidence,  or  the  legal  effect  of  it  [instruc- 
tions], or  the  like;  and,  second,  it  is  to  reduce  to 
writing,  and  incorporate  on  the  record,  the  substance 
of  the  transaction  on  which  the  opinion  of  the  court 
is  founded,  so  that  the  court  above,  when  called  on  to 
revise  the  decision,  may  be  able  to  see  and  correct  the 
errors,  if  any  exist.  And  the  question  thereby  pre- 
sented is,  whether  the  facts  which  induced  it  are  suf- 
ficient to  justify  it."  ^ 

§  657.  Where  a  bill  concludes  "to  which  several 
decisions  of  the  court  the  defendant  excepted  at  the 
moment,"  it  will  be  taken  that  the  exceptions  were 
duly  made.^  And  equivalent  expressions  may  be  as 
satisfactory  and  clear  as  positive  averments  that  "  the 
foregoing  was  all  the  testimony  that  was  produced  on 
the  trial  of  this  cause."  ^  And  where  the  language  is, 
that  certain  "  facts  appeared,"  it  is  to  be  taken  that 
they  were  undisputed  or  conceded  by  both  parties.* 
The  court  will  always  give  effect  to  the  plain  and  ob- 
vious meaning  of  the  language  used,^  and  never  be- 
come supercilious  or  hypercritical  in  construing  bills 
of  exception,  any  more  than  pleadings  in  a  cause. 
And  so,  where  there  is  a  particular  expression,  as 
that  there  was  "no  evidence  of  any  indebtedness," 
which  is  repugnant  to  other  statements  in  the  bill,  it 
will  be  construed  to  mean  that  there  was  no  positive 
proof  of  indebtedness.^ 

1  Cox  V.  Garvin,  1  Eng.(Ark.)  ^  Beach  v.  Packard,  10  Vt.  96. 
436.  ^  Codman    v.  Armstrong,   28 

2  Steamboats.  Smith,  10  Mo.     Me.  91. 

527.  ^  Goodgame  i;.Clifton,  13  Ala 

s  Everett  v.  Clements,  4  Eng.     583. 
480 


Chap.  Ill]  CONSTRUCTIOl^   OF   BILLS.  521 

But  where  a  bill  is  settled  several  days  after  the 
trial  of  a  cause,  and  states  that  "  the  plaintiff  asked 
for  the  following  instructions,  to  the  giving  of  which 
the  defendant  excepts,"  the  court,  in  Illinois,  will  not 
consider  the  instructions,  but  regard  the  exception  to 
them  as  not  having  been  taken  at  the  trial/ 

§  60S.  But,  in  consequence  of  the  presumption  of 
correctness  in  all  proceedings,  a  bill  of  exceptions, 
being  in  the  nature  of  an  impeachment  of  such  pro- 
ceedings so  presumed  to  be  correct,  will  be  construed 
most  strongly  against  the  exceptor  in  all  cases  of 
doubtful  interpretation,  since  all  reasonable  presump- 
tions will  always  be  indulged  by  an  appellate  court  in 
favor  of  the  judgment  of  a  subordinate  tribunal.  And 
if  an  alternative  state  of  facts  is  presented  for  deter- 
mination in  the  lower  court,  one  of  which  will  sustain 
and  the  other  reverse  its  judgment,  it  devolves  upon 
the  objector  to  negative  by  his  bill  of  exceptions, 
either  by  positive  statement,  or  a  recital  of  all  the 
evidence,  the  alternative  which  supports  the  judg- 
ment.^ And,  on  the  same  principle,  if  a  bill  itself 
admits  of  two  constructions,  that  will  be  adopted 
which  is  most  favorable  to  the  regularity  of  the  judg- 
ment.^ And  so,  where  it  was  objected  that  the  court 
charged  that  the  plaintiff,  who  was  only  a  joint  owner, 
could  recover  the  entire  value  of  the  property,  but 
this  did  not  appear  in  the  bill  of  exceptions,  the  coiu"t 
would  not  hear  the  objection. ^° 

7  Dufieldv.  Cross,  13  111.  699.         10  Perminter    v.    Kelley,    18 

8  Patton  V.  Hayter,  15  Ala.  18.     Ala.  719. 
^  Donnell  ?>.  Jones,    17   Ala. 

*)89. 


522  BILLS    OP   EXCEPTION.  [Part  III. 

§  659.  And,  on  this  same  principle,  when  a  bill 
sets  out  several  distinct  charges  and  refusals  to  charge 
on  request,  and  concludes  with  the  words  "  to  which 
defendant  excepted,"  it  is  held  that  a  court  will  con- 
strue the  conclusion  to  apply  only  to  the  charge  and 
refusal  contained  in  the  paragraph  immediately  pre- 
ceding it.'^  And  so  in  regard  to  rulings  in  respect  to 
evidence  and  to  the  rendition  of  judgment.'-  And  so, 
where  an  interrogatory  is  not  set  out,  but  only  the 
answer  thereto,  in  the  bill  of  exceptions,  the  court  will 
presume  against  the  exceptor  that  the  answer  was 
responsive  to  the  interrogatory." 

In  a  case  where  insanity  was  set  up  as  a  defence 
against  an  indictment,  the  bill  of  exceptions  recited 
an  offer  by  the  state  to  prove,  by  a  witness  who  had 
known  the  prisoner  two  years  before  the  commission 
of  the  alleged  offence,  that  the  prisoner  was  of  sound 
mind,  to  which  testimony  the  prisoner  objected,  and, 
the  objection  being  overruled,  excepted  to  the  decision 
of  the  court  thereon;  and  the  appellate  court  re- 
marked, "  The  bill  of  exceptions  must  be  taken  most 
strongly  against  the  exceptor;  and,  without  forcing  the 
language  employed,  we  may  well  suppose  that  the  wit- 
ness referred  to  the  sanity  of  the  prisoner,  to  the  ante- 
cedents, to  his  knowledge  of  and  acquaintance  with  him 
before  the  commission  of  the  act.  Had  it  been  other- 
wise, the  objection  should  have  been  more  specific."  ^* 

And  where  a  bill  set  out  a  request,  and  concluded 

^1  An  dress  ik    Broughton,  21  ^^  Pm-i^^^'g  ^dnr^'r  i;   jy^gi-j-iU^ 

Ala.  200.  23  Ala.  714. 

12  Sammis  v.  Johnson,  22  Ala.  ^^  Powell  v.  State,  25  Ala.  30. 
690. 


Chap.  III.]  CONSTRUCTION   OF   BILLS.  523 

with  the  words  "  which  charge  the  court  refused  and 
the  defendant  excepted,"  the  exception  was  held  to 
apply  only  to  the  refusal  to  charge  as  asked,  and 
that  it  could  not  be  extended  to  charges  previously 
given. '^ 

§  660.  A  case  happened  in  Alabama  on  this  wise, 
involving  this  same  principle  of  construing  a  bill  most 
strongly  against  the  exceptor.  I  prefer  to  state  it  in 
the  language  of  the  opinion,  namety:  "When  a  bill 
of  exceptions  fairly  admits  of  two  constructions,  one 
of  which  will  support  the  ruling  of  the  primaiy  court, 
while  the  other  will  not,  this  court  will  adopt  the 
former.  The  bill  of  .exceptions  must  be  construed 
most  strongly  against  the  party  excepting.  The  bill 
of  exceptions  in  this  case  shows  that  the  agreement 
on  which  the  defence  was  rested  in  the  charge  asked 
by  the  defendants,  was  made  *  in  the  spring  of  1852.' 
That  agreement  was  that  the  goods,  which  the  plain- 
tiff's sons  should  buy  at  the  store  of  the  defendants, 
should  be  received  in  payment  upon  the  demand  here 
sued  on,  the  amount  of  which  is  some  four  hundred 
and  fifty  dollars.  The  defendants  produced  and  proved 
accounts  against  each  of  the  sons  of  the  plaintiff,  for 
goods  sold  them  in  1852,  amounting  in  the  aggregate 
to  more  than  two  hundred  dollars.  The  bill  of  ex- 
ceptions does  not  profess  to  set  out  all  the  evidence, 
nor  does  it  set  forth  the  accounts  against  the  sons  of 
the  plaintiff,  nor  does  it  negative  the  idea  that  some 
part  of  these  accounts  was  for  goods  sold  to  the  plain- 
tiff in  the  early  part  of  1852,  and  before  the  plaintiff 

15  Agee  V.  Medlock,  25  Ala.  281. 


524  BILLS    OF   EXCEPTION.  [Part  III. 

made  said  agreement  that  the  goods  his  sons  should 
buy  at  defendants'  store  should  be  received  in  pay- 
ment upon  the  demand  here  sued  on.  Upon  this  bill 
of  exceptions,  Ave  must  intend  that  the  accounts 
against  plaintiff's  sons,  produced  and  proved  in  the 
court  below,  showed  that  some  of  the  goods  therein 
charged  were  sold  to  the  plaintiff-'s  sons  before  the 
plaintiff  made  said  agreement.  This  presumption  is 
consistent  with  the  record,  and  sustains  the  refusal 
of  the  court  below  to  give  the  charge  asked  by  the 
defendants."''' 

The  rule  is  thus  stated  in  Vermont:  "^N'othingis 
to  be  presumed  against  bills  of  exception,  with  a  view 
to  predicate  error  upon  any  decision  of  the  court 
there  detailed,  but  all  fair  and  just  intendments  and 
constructions  shall  be  made  in  favor  of  the  decisions 
below,"  '^  in  cases  where  the  bill  is  reasonably  doubt- 
ful.^^ 

§  661.  The  rule,  however,  has  not  all  the  rigidity 
of  the  old  common  law  rule  as  to  pleadings,  which 
rule  sometimes  appears  to  have  been  carried  to  the 
extent  of  straining  a  point  in  order  to  throw  out  the 
pleader.  Only  where  a  close  interpretation  of  a  bill 
still  leaves  the  meaning  ambiguous  does  the  rule 
apply,  and  the  bill  must  receive  a  reasonable  con- 
struction; ^'^  and  it  is  going  too  far  to  say  that  no 
intendment  whatever  is  to  be  made  in  favor  of  the 
party  thus  setting  up  his  rights,  but  the  interpretation 
is  to  be  as  in  the  usual  and  ordinary  sense  of  lan- 

16  Nash  V.  Shrader,  27  Ala.  ^^  Cram's  Adm'r  v.  Cram,  33 
379.  Vt.  15. 

17  McCann  v.  Hallock,  30  Vt.  ^^  Smith  v.  Garrett,  31  Ala. 
236.  492. 


Chap.  III.]  COI^STRUCTl  m   OF   BILLS.  525 

giiage,  as  a  plain  statement  of  facts  for  I  oth  parties, 
to  which  the  court  is  to  apply  the  law.^"  But  words 
will  not  be  taken  out  of  their  natural  import  in  order 
to  sustain  the  bill  in  any  case.*^^ 

§  662.  As  examples  of  the  application  of  the  rule 
under  this  modification,  we  will  refer  to  the  following 
instances :  — 

"Where  an  action  was  brought  by  an  administrator, 
and  the  bill  of  exceptions  recited  that  it  set  out  all 
the  evidence,  and  that  "  the  plaintiff  proved  his  de- 
mand as  administrator,"  it  was  held  a  sufficient  recital 
to  show  that  he  had  read  his  letters  of  administration 
in  evidence. ^^ 

TVTiere  a  bill  set  out  that  the  plaintiff  had  offered  in 
evidence  the  note  sued  on,  and  then  proceeded  thus, 
"  The  defendant  then  offered  to  read  the  second  inter- 
rogatory, and  answers  thereto  of  R.  B.,  as  follows," 
&c.,  "this  answer  was  objected  to  by  the  plaintiff. 
The  objection  was  sustained  by  the  court,  and  the 
answer  excluded,  to  which  defendant  excepted.  De- 
fendant then  offered  to  read  the  third  interrogatory, 
and  answer  thereto  of  said  R.  B.,  as  follows,"  &;c. 
"  To  the  reading  of  which  answer  plaintiff  objected. 
The  court  sustained  his  objection,  and  excluded  the 
evidence,  and  defendant  excepted,"  it  was  held  by  a 
divided  court  that  this  must  be  construed  to  mean 
that  the  entire  deposition  was  offered,  and  that  the 
counsel  offering  it  was  proceeding  to  read  the  answers 
to  the  several  interrogatories,  ii    their  regular  order .~^ 

^Town  of  Westford  v.  Town  ^  Bell's  Adm'r  v.  Andrews, 

of  Essex,  31  Vt.  459.  34  Ala.  538. 

2^  Thompson  v.  Drake,32  Ala.  ^  Bryant  v.  Hutchinson,   30 

99.  Ala.  441. 


526  BILLS    OF    EXCEPTION.  [Part  III. 

Where  a  bill  stated  that  the  defendant,  "for  the 
purpose  of  showing  his  title,  and  the  actual  boundary 
of  his  land,  and  that  said  fence  was  upon  his  land, 
then  offered  to  introduce  in  evidence  the  field-notes 
of  the  survey  of  the  section  of  land  in  Avhich  the 
fence  in  controversy  was  situated,  and  the  evidence 
of  a  survey  made  according  to  said  field-notes  by  a 
county  surveyor  of  said  county,  and  to  show  that 
plaintiff  had  notice  of  the  survey  so  made  by  the 
county  surveyor,"  that  "  the  plaintiff  objected  to  the 
introduction  of  this  evidence  of  the  field-notes,  and 
the  survey  made  according  to  them,"  and  that  "  the 
court  ruled  the  evidence  inadmissible  for  the  purpose 
offered,  and  excluded  it,"  it  was  held  by  a  divided 
court  that  the  objection  was  to  the  facts  offered  to  be 
proved,  and  not  to  the  medium  or  instruments  of 
proof;  that  the  facts  being  relevant  and  material,  the 
court  erred  in  excluding  the  evidence,  and  that  the 
bill  showed  merely  an  offer  to  introduce  in  evidence 
the  field-notes  and  survey  delineated  on  paper,  which, 
in  the  absence  of  preliminary  proof,  being  inadmissi- 
ble, the  exclusion  of  the  evidence  was  not  shoAvn  to 
be  erroneous.^*  The  dissent  of  the  chief  justice  was 
on  the  latter  branch  of  the  decision. 

In  a  case  of  the  loss  of  an  administrator's  deed, 
where  a  recital  was  that  "the  plaintiff's  counsel 
offered  the  probate  records,  showing  the  appointment 
of  an  administrator  named,"  <S:c.,  "  and  also  tending 
to  show  sale  of  the  lots  in  question  to  one  A  B,  and 
the  execution  of  a  deed,  which  had  been  lost,"  it  was 
held  that  whether  these  phrases  were  anything  more 

24  Dailey  ".  Fountain,  35  Ala.  27. 


Chvf.  III.]  CONSTRUCTION^   OF    BH^LS.  527 

than  a  mere  statement  that  the  probate  records  alone 
were  offered  to  prove  the  loss  of  the  deed  was  at  least 
doubtful;  but  as  the  objection  was  not  specially  that 
there  was  no  proof  of  the  loss,  but  only  that  the  con- 
tents were  not  proved,  the  case  was  to  be  consid- 
ered as  if  the  bill  had  stated  that  "  evidence  was  also 
given  tending  to  show  the  loss."  ^^ 

In  a  certain  case  it  was  urged  that  the  bill  did  not 
show  that  the  ruling  of  the  court  below  was  "  excepted 
to,"  but  only  "objected  to."  But  the  court  said,  "We 
think  that,  when  the  bill  of  exceptions  shows  that  the 
ruling  of  the  court  was  objected  to  at  the  time  it  was 
made  on  the  trial,  it  is  sufficient.  A  bill  of  exceptions 
is  defined  to  be  ^  a  statement  of  the  objections  made 
by  the  parties  to  the  ruling  of  the  court '  (Bouv.  Law 
Die.  200) ;  and  the  bill  in  the  present  case  comes 
fully  up  to  the  definition.  We  are  unable  to  see  any 
sound  reason  why  it  should  be  necessary  to  state  spe- 
cially that  the  ruling  of  the  court  was  excepted  to. 
Such  must  necessarily  be  the  purpose  and  intent  of 
every  objection  which  is  made  to  the  decision  of  the 
court ;  and  the  objection  becomes  senseless  and  absurd 
on  any  other  supposition."  ''^ 

Where  certain  evidence  was  recited  in  a  bill,  and 
then  it  was  stated  therein,  "upon  this  evidence  the 
plaintiff  rested  his  case ; "  then  evidence  adduced  by 
the  defendant  was  set  out,  and  the  bill  stated,  "  upon 
this  evidence  the  defendant  rested  his  defence; "  then 
the  bill  set  out  further  evidence  by  the  plaintiff,  and 
stated  "  this  rebutting  testimony  closed  the  evidence 

^  Hoffman  v.  Harrington,  28  ^6  ggckett  v.  McCord,  23  Ala. 
Mich.  UO.  854. 


528  BH-LS    OF   EXCEPTIOIT.  [Part  III. 

in  the  case," — it  was  held  that  it  sufficiently  appeared 
that  all  the  evidence  given  at  the  trial  was  included 
in  the  bill.'' 

But  where  a  bill  recited  an  objection  to  the  compe- 
tency of  a  witness  on  the  ground  that  "  it  appeared, 
upon  his  examination  voir  dire,  that  he  had  indemni- 
fied the  defendant's  testator  agaiust  any  loss  arising 
from  the  claim  in  suit,"  and  that  the  court  overruled 
the  objection,  it  was  held  that  the  appellate  court 
would  presume,  if  the  testimony  of  the  witness  on  his 
preluninary  examination  is  not  set  out,  that  the  objec- 
tion was  not  sustained  by  the  facts. '^ 

§  663.  It  will  not  be  presumed  against  the  bill  that 
it  does  not  contain  all  the  evidence,  where  the  form 
and  language  thereof  indicate  that  the  whole  testi- 
mony of  each  witness  is  set  out  verbatim,  and  the 
conclusion  is,  "  the  evidence  was  here  closed."  ~" 

§  664.  In  Massachusetts,*'^  if  a  married  woman  keeps 
in  the  house  of  her  husband  intoxicating  liquors  with 
intent  to  sell  the  same  in  violation  of  law,  the  husband 
will  be  liable  for  such  illegal  keepiug,  if  he  has  knowl- 
edge of  the  fact  and  of  her  intent,  and  does  not  use 
reasonable  means  to  prevent  her  carrying  out  such 
intent,  notwithstanding  she  is  doing  business  on  her 
own  account,  having  filed  a  certificate  under  the  stat- 
ute of  1862,  c.  198,  and  has  a  United  States  license  as 

*  Under  a  former  prohibitory  law.  I  do  not  know  whether  it 
is  in  existence  now  or  not ;  but  no  matter,  for  the  purpose  of  the 
section  above. 


27  McClure  v.  Pursell,  6  Ind.         ^9  Carter  v.  Snyder,  27  Mich. 
331.  484. 

28  Rupert  V.  Elston's  Ex'r,  35 
Ala.  79. 


Chap.  111.]  CONSTRUCTIOIS"   OF   BILLS.  529 

a  retail  liquor  dealer.  And  where  a  bill  of  exceptions 
stated  that  the  liquors  were  kept  by  the  defendant's 
wife,  who  did  business  on  her  own  account,  having 
filed  a  proper  certificate,  and  taken  out  a  United  States 
license  as  a  retail  liquor  dealer,  and  that  he  lived  in 
the  house  with  her,  but  did  not  state  that  she  kept  the 
liquors  in  a  store-room  apart  from  the  husband's  house, 
the  construction  was  adopted  that  she  kept  them  in 
the  house,  and  so  rendered  him  liable.'^" 

§  665.  In  Texas,  where  a  bill  sets  out  what  pur- 
ports to  be  a  full  statement  of  all  the  facts  given  in 
evidence,  it  will  be  presumed  that  it  was  intended  to 
embrace  both  a  statement  of  facts  and  a  bill  of  ex- 
ceptions.^^ Although  this  seems  to  have  been  over- 
ruled indirectly  by  a  later  case,  wherein  it  is  said, "  The 
bill  of  exceptions  assumes  to  state  all  the  facts,  but 
being  only  a  bill  of  exceptions,  the  parties  were  not 
required  to  agree  to  it  in  the  first  instance,  and  the 
appellee  was  not  bound  to  see  that  the  facts  were 
stated,  except  so  far  as  might  be  necessary  to  present 
the  objection  to  the  evidence ;  and  indeed  he  had  no 
control  over  it.  He  should  not,  therefore,  be  bound  by 
it  as  a  statement  of  facts."  ^^ 

2*^  Commonwealth    v.    Barry,         ^  Carolan  V.  Jefierson,24  Tex. 
115  Mass.  146.  231. 

31  Bennett  v.DowWng,  22  Tex. 
662. 

34 


530  BILLS   OF   EXCEPTION.  [Paui  III, 


CHAPTER  lY. 
Bills  iviust  show  ln^jurious  Error  aftiiim- 

ATIVELT. 

§  666.  The  general  principle  is  thus  set  forth  in 
some  early  cases  in  Vermont :  "  The  bill  must  show 
that  the  court  below  erred;  and  this  must  be  done 
either  by  stating-  definite  law  points,  or  by  stating  the 
whole  evidence,  of  which  the  legal  import  is  embraced 
in  the  decision ; "  and  in  the  latter  case,  it  was  appar- 
ently held  that  the  bill  must  state,  negatively,  that  no 
other  evidence  was  given  tending  to  prove  the  point  in- 
cluded in  the  decision.^  And  again:  "The  judgment 
below  will  be  presumed  to  be  right,  and  will  be  af- 
firmed, unless  the  record  show  error;  also,  if  the 
exceptions  are  so  defectively  drawn  that  it  cannot  be 
ascertained  whether  there  was  error  or  not."  ^ 

But  Virginia,  standing,  so  far  as  I  know,  entirely 
alone,  formerly  held  the  opposite  of  this  rule;  and 
where  a  bill  of  exceptions  is  vague  and  indetermi- 
nate, the  case  is  remanded  for  a  new  trial.^  But  the 
reasonableness  of  the  rule,  it  seems  to  me,  is  easily 
made  apparent;  that,  where  an  exceptor  fails  to  estab- 
lish his  objections  to  the  decision  below,  this  relieves 

^  Richardson  v.  Dennison,    1  3  Hairston   v.  Cole,   1    Rand, 

Aik.  210  ;  Stearns   v.  Warner,  461  ;  Brooke  v.  Young,  3  Rand, 

2  Aik.  26.  106  ;  Raines  v.  Phillips,  1  Leigh. 

2  Adams  v.  Ellis,   1  Aik.  24  ;  483,  and  Thompson  v.  Camming, 

Eaton  V.  Houghton,  1  Aik.  380.  2  Leigh.  822. 


Chap.  IV.]        BILLS   :MUST    SHOW   EREOR,  ETC.  531 

it  of  objection,  and  it  ought  to  stand,  and  particularly 
so  when  we  take  into  consideration  the  general  rule, 
that  all  legal  proceedings  are  to  be  presumed  correct; 
so  that  even  in  regard  to  inferences  deduced  from 
acknowledged  facts,  it  has  been  held  that  the  con- 
struction of  the  court  below  will  be  adopted  in  doubt- 
ful cases/ 

§  667.  Wliere  a  county  court  based  its  judgment 
on  the  finding  of  a  commissioner  in  regard  to  the  pro- 
visions of  a  lease,  which  lease  was  not  set  out  by  the 
bill  of  exceptions,  the  Supreme  Court  said,  "Error 
must  be  shown  by  the  exceptions,  or  the  judgment 
must  stand."  ^ 

And,  in  Louisiana,  it  is  said,  "  It  has  been  repeat- 
edly held  that  this  court  will  not  look  for  objections 
out  of  the  bill,  and  that  general  expressions  therein 
—  such  as  illegally  taken,'  Hhe  law  has  not  been 
complied  with,'  ^  it  is  not  the  best  evidence,'  '  is  inad- 
missible'—  and  the  like  are  insufficient.  The  party 
taking  the  bill  must  spread  on  the  face  of  it  every- 
thing necessary  to  enable  the  appellate  court  to  say 
that  the  court  below  erred."  ^ 

In  Texas,  it  is  held  that  a  bill  should  so  state  the 
facts  as  to  exclude  any  reasonable  conclusion  of  fact 
by  which  the  decision  below  could  be  sustained.  And 
where  a  bill  merely  showed  that  the  plaintiff  had  of- 
fered the  deposition  of  a  witness  taken  in  another 
cause  between  the  same  parties,  the  court  remarked, 

*  Palinan  v.  Phelps,  25  Vt.  ^  Gray  v.  Thomas,  18  La.  An. 
480.  413. 

5  Bartl.^tt   V.   Wood,  32  Vt. 
377. 


532  BILLS    OF   EXCEPTION.  [Part  IIL 

"  It  is  not  shown  by  the  bill  of  exceptions,  the  state- 
ment of  facts,  nor  any  other  part  of  the  record,  that 
the  witness  was  either  dead  or  beyond  the  jurisdiction 
of  the  court  even,  which  must  be  shown  before  such 
evidence  can  be  received."  ^  And  this  is  because  all 
reasonable  presumptions  will  be  made  in  favor  of  the 
regularity  of  the  proceedings  below,  the  conrts  never 
raising  a  presumption  that  error  has  intervened  for 
the  purpose  of  defeating  the  judgment.^ 

§  668.  It  is  not  sufficient  that  it  appears  that  there 
may  have  been  error.  It  must  be  a  certainty  that 
there  was  error  before  the  court  will  interfere."  And 
where  there  were  recitals  in  a  bill  that  plaintiff  of- 
fered a  certain  tax  deed,  which  was  rejected,  and  also 
that  he  offered  a  certified  copy  of  a  report  of  com- 
missioners elected,  &c.,  and  neither  the  tax  deed  nor 
the  report  was  set  out,  the  Supreme  Court  affirmed 
the  judgment,  remarking,  "It  is  impossible  to  say 
from  the  record  whether  it  was  or  was  not  error  to 
reject  the  offered  evidence." '" 

§  669.  Wliere  a  fact  can  only  be  established  in  a 
particular  manner,  and  proof  thereof  is  rejected,  the 
record  must  show  that  the  proof  offered  was  pertinent 
to  that  particular  manner;  and  where  a  defendant 
"  offered  to  prove,"  as  alleged  by  his  bill  of  excep- 
tions, that  the  acknowledgment  of  a  foreign  officer 
was  not  in  due  form,  but  the  bill  failed  to  state  how 
or  by  what  proof,  it  was  held  that  the  record  did  not 

7  Sadler  v.  Anderson,  IT  Tex.  ^  Cutler  v.  Hurlburt,  P.9  Wis. 
256.  168,  and  many  cases  cited. 

8  Ponltney  v.  Glover,  2-3  Vt.  i"  Eaton  v.  Lyman,  33  Wis 
331.  38. 


Chap.  IV.]        BILLS   MUST    SHOW   EKKOR,  ETC.  533 

show  error  in  the  rejection  of  the  evidence  by  the 
court  beloAV,  and  the  presumption  of  law  was  in  favor 
of  its  correctness.^^  And  where  there  was  a  convic- 
tion under  an  ordinance  against  the  sale  of  articles 
without  license,  the  court  say,  "It  is  probable  that 
there  is  some  ordinance  of  the  city  of  Galena  prohib- 
iting persons,  under  penalties,  from  selling  merchan- 
dise within  the  city  without  license,  which  was  the 
foundation  of  this  action;  and  it  may  be  true  that 
this  ordinance  was  read  in  evidence  before  the  jury 
on  the  trial,  and  was  accidentally  omitted  to  be  made 
a  part  of  the  bill  of  exceptions.  The  court  is,  how- 
ever, bound  to  decide  questions  as  they  are  presented 
in  the  record.  We  can  find  no  evidence  to  sustain 
this  judgment."  ^~ 

§  670.  Where  a  witness  is  rejected  below,  the  bill 
of  exceptions  thereto  must  set  out  the  grounds  on 
which  he  was  rejected."  And  if  a  witness  is  asked  a 
question,  which  is  objected  to,  and  the  objection  over- 
ruled, the  bill  must  state  that  he  answered  the  ques- 
tion, and  show  what  the  answer  was.  And  where 
evidence  is  admitted  and  objected  to,  the  bill  must 
show  wherein  the  evidence  is  improper;  and  if  ex- 
ception is  taken  to  the  exclusion  of  evidence,  the  bill 
must  show  that  it  was  relevant.^* 

Wliere  the  grounds  of  the  rejection  of  a  witness 
are  stated  in  the  bill,  —  as,  for  instance,  that  he  was 
interested,  —  but    the    bill    does    not    negative    the 

11  Sessions  v.  Reyuolds,  1  ^^  Armstrong  u.  Clark, lY  Ohio, 
S.  &  M.  (Miss.)  131.  497. 

12  Culbertson  v.  City  of  Ga-  i*  Johnson's  Ex'r  v.  Jen- 
leua,  2  Gil.  (111.)  131.  "  ning's  Adm'r,  10  Gratt.  (Va.)  1. 


534  BILLS    OF   EXCEPTIOIT.  [Part  IIL 

ground,  it  will  be  taken  that  the  rejection  was 
pi'oper.^^ 

§  671.  But  the  presumption  of  correctness  in  favor 
of  the  proceedings  below  has  its  reasonable  limits. 
Thus  the  Supreme  Court  of  Alabama,  in  a  certain 
case,  remarked,  "To  avoid  the  necessity  of  going 
such  lengths  to  sustain  the  decision  below,  we  would 
better  not  take  the  start.  If,  for  the  purpose  of  sus- 
taining the  decision,  we  presume  that  the  magistrate 
neglected  his  duty,  we  sustain  the  court  beloAV  at  his 
expense.  This  is  going  too  far."  ^^  And  an  exceptor 
may  be  relieved  of  the  necessity  of  showing  the  rel- 
evancy and  materiality  of  testimony,  when  these  are 
manifest  in  the  pleadings;  or  when  evidence  is  in  its 
nature  inadmissible,  the  grounds  of  the  objection 
need  not  be  stated.  ^" 

§  672.  A  general  objection  to  the  admissibility  of 
evidence,  however,  will  not  be  sustained  if  it  be  ad- 
missible for  some  purposes,  though  not  for  others. 
In  such  a  case,  the  bill  must  show  that  it  was  gen- 
erally admitted  without  the  needful  limitations,  or, 
being  in,  permitted  to  be  used  for  an  incompetent 
-purpose?^ 

§  673.  Where  the  objection  is,  that  there  is  no  evi- 
dence to  which  an  instruction  given  can  apply,  the 
party  excepting  must  set  out  the  evid^Bnce  in  order  to 
overcome  the  presumption  in  favor  of  the  court  be- 
low that  the  giving  of  the  instruction  was  proper.'^ 

^5  McCaskey  v.  Graff,  23  Pa.  ^^  whitcher   v.    McLaughlin, 

St.  321.  115  Mass.  169. 

16  Davis  V.  State,  11  Ala.  418.  ^^  Duggins    v.     Watson,     15 

1'  Ibid.  Ark.  122. 


Chap.  IV.]        BILLS   l^IUST   SHOW   ERROR,  ETC.  535 

§  674.  It  is  not  only  necessary  to  show  error,  but  to 
show  also  that  the  error  was  prejudicial  to  the  party 
excepting.  And  accordingly  the  materiality  of  what 
is  complained  of  must  clearly  appear.  Thus,  where 
a  bill  in  a  criminal  case  set  out  a  ruling  of  the  judge 
as  to  the  manner  of  challenging  jurors,  but  did  not 
show  that  the  prosecuting  attorney  exercised  any 
right  of  challenge  under  the  ruling,  the  court  said, 
"Until  he  was  permitted  to  exercise  it  improperly, 
and  did  in  fact  exercise  it,  the  question  what  the  rule 
should  be  was  not  material,  but  was  a  mere  moot 
question.  A  bill  of  exceptions  must  show  that  the 
question  saved  was  material,"  ^°  the  rule  being  the 
same,  in  this  regard,  in  civil  and  criminal  cases.^^ 

§  675.  So  if,  in  the  progress  of  a  cause,  a  rulmg 
becomes  immaterial,  it  annuls  thereby  the  exception. 
The  general  rule  is  thus  stated  by  the  Supreme  Court 
of  the  United  States,  per  Story,  J. :  "  As  to  some  of 
these  exceptions  which  are  thus  brought  before  us,  it 
is  unnecessary  to  decide  whether  they  are  well  or  ill 
founded,  because,  in  the  progress  of  the  cause,  it  is 
apparent  that  they  worked  no  ultimate  injury  to  the 
plaintiff,  since,  independently  of  the  matters  therein 
stated,  it  is  admitted  upon  the  record  that  the  plain- 
tiff made  out  a  good  title  in  his  lessor,  which  was  all 
the  plaintiff  proposed  to  establish  by  them.  And  we 
wish  it  to  be  understood,  as  a  general  rule,  that  where 
there  are  various  bills  of  exception  filed,  according  to 
the  local  practice,  if,  in  the  progress  of  the  cause,  the 
matters  of  any  of  those  exceptions  become  wholly 

^  Commonwealth    v.    Carey,          ^^  Shorter  r.  People,  2  Comst. 
108  Mass.  485.  (N.  Y.)  193. 


536  BILLS    OF   EXCEPTION".  [Part  TIL 

immaterial  to  the  merits,  as  they  are  finally  made  out 
at  the  trial,  they  are  no  longer  assignable  as  error, 
however  they  may  have  been  ruled  in  the  court  below. 
There  must  be  some  injury  to  the  party  to  make  the 
matter  generally  assignable  as  error."  "^ 

§  676.  Accordingly  the  matter  complained  of  must 
be  shown  to  be  material  in  sustaining  the  issu*i 
joined.^^ 

§  677.  The  generality  of  instructions,  if  harmless, 
is  no  ground  for  exceptions,  even  if  it  withdraws  a 
question  from  the  jury  which  they  might  have  con- 
sidered, if  it  appears  there  was  no  evidence  which 
would  have  authorized  them  to  find  that  question  for 
the  exceptor.^* 

And  where  an  error  is  cured  by  the  verdict,  as 
where  the  plaintiff,  notwithstanding  erroneous  rulings, 
obtained  the  full  amount  of  his  claim,  he  cannot  urge 
his  exceptions  to  the  rulings.'^  And  more  especially 
where  the  ruling  operated  to  the  advantage  of  a  party, 
he  cannot  object  to  it.^^ 

§  678.  Where  a  tenant  read  certain  deeds,  with 
which  he  proposed  to  connect  his  own  title,  but  failed 
in  the  attempt,  the  admission  of  the  deeds  was  held 
no  ground  of  exception,  especially  when  the  demand- 
ant did  not  ask  their  rejection,  or  any  rulings  on  their 
effect.^' 

§  679.  And  so,  where  a  motion  for  a  new  trial  is 

22  Greenleaf's  Lessee  v.  Birth,  ^5  j^g  Co. v.  Minard,  2  Comst. 
5  Pet.  134.  (N.  Y.)  102. 

23  Stevens  v.  State,  14  Ohio,  ^  Fuller  v.  Ruby,  10  Gray, 
386.  288. 

24  Copeland  v.  Copeland,  28  27  Webster  v.  Calden,  55  Me. 
Me.  543.  170. 


Chap.  IV.]        BILLS   MUST    SHOW   ERROR,  ETC.  537 

made  (in  Ohio)  on  the  ground  that  the  special  find- 
ings of  a  jury  are  contrary  to  evidence,  and  the 
motion  is  overruled,  and  exceptions  taken  embodying 
the  whole  testimony  in  a  bill,  and  the  Supreme  Court 
finds  the  alleged  error  to  exist,  it  will  look  into  the 
whole  record  to  ascertain  whether  the  error  was 
prejudicial  to  the  party  excepting.^^ 

And  an  exception  to  a  question  asked  a  witness 
will  not  be  considered,  unless  it  is  shown  how  the 
question  was  answered,  and  that  the  answer  was  in 
some  way  prejudicial  to  the  exceptor.^^ 

§  680.  And  injury  must  be  shown  aflirmatively. 
And  where  the  matter  admits  of  a  question,  it  will  be 
taken  that  the  party  complaining  has  not  been  ag- 
grieved.''" If  the  complaint  be  as  to  testimony,  it 
must  appear  that  the  testimony  admitted  was  of  a 
nature  to  work  prejudice.^^ 

And  so,  as  to  a  refusal  to  give  a  requested  instruc- 
tion, enough  of  the  evidence  must  be  shown  to  estab- 
lish the  fact  of  prejudice  positively.  It  is  held  not 
sufficient  to  "  show  inferentially,  by  a  forced  and  un- 
natural construction  of  the  statements  of  the  excep- 
tions, and  in  an  improbable  contingency,  that  he  may 
possibly  have  been  injured."  ^~  And  so,  where  admin- 
istrators' accounts  were  objected  to  as  evidence,  but 
the  accounts  were  not  set  out,  and  there  was  nothing 
to  show  injury,  the  exceptions  were  overruled.^^  And 
if  evidence  was  manifestly  incompetent,  nevertheless, 

28  Oliver  v.    Moore,  23   Ohio         ^i  Brooks  v.  Goss,  ibid.  307. 
St.  473.  32  Lord  v.  Inhab.,  &c.  61  Me. 

29  Kershaw    v.    Wright,   115     463. 

Mass.  361.  23  McLoon  v.  Spalding,62  Me. 

30  Bryant  V.  R.  R.  61  Me.  302.     315. 


538  BILLS    OF   EXCEPTIOl^.  [Part  III. 

if,  from  the  nature  of  the  testimon}'-  itself,  it  is  ap- 
parent that  the  exceptor  was  not  thereby  injured.^* 

§  681.  Wliere  one  admitted  that  he  wrote  a  certain 
pubhcation,  and  that  it  was  a  hbel,  only  claiming  on 
the  trial  the  right  of  going  to  the  jury  upon  the  ques- 
tion of  malice,  and  afterwards  complained  that  the 
question  of  libel  or  not  was  not  submitted  to  the  jury, 
it  was  held  thereon  that  he  could  not  have  been 
aggrieved  by  the  fact,  nor  by  an  erroneous  charge  of 
the  judge  as  to  whose  province  it  was  to  decide  the 
question  of  libel.  His  admission  annulled  all  right 
of  protest.^ 

§  682.  To  sum  up,  we  will  cite  here  a  statement  of 
the  rule  by  the  Superior  Court  of  Kew  York  city :  "  A 
party  excepting  must,  at  his  peril,  place  enough  in 
his  bill  to  show  that  the  court  erred  to  his  prejudice. 
The  legal  presumption  is  in  favor  of  the  rectitude 
of  the  proceeding,  and  all  decisions  made  will  be 
presumed  correct  until  the  contrary  appears.  When 
the  error  relied  on  consists  in  the  exclusion  of  evi- 
dence offered,  the  bill  must  show,  affirmatively,  that 
it  was  relevant  when  offered  and  excluded.  It  is  not 
enough  that,  in  the  nature  of  things,  something  else 
might  have  been  proved  that  would  render  it  relevant 
and  material.  It  must  be  distinctly  made  to  appear 
how  it  was  relevant,  and  the  court  will  not  interfere 
on  account  of  its  rejection,  unless,  in  connection  with 
the  evidence  previously  given,  or  that  and  evidence 
offered  to  be  given,  it  can  be  seen  to  be  material."  ^^ 

^  Millett  V.  Marston,  62  Me.  ^6  y^n  Amringo  v.  Barnett,  8 

4*77.  Bosw.  373. 

35  State  V.  Goold,  62  Me.  511. 


Chap.  V.]       BILLS   MUST   ONLY  PEESENT,  ETC.  539 


CHAPTER  Y. 

Bills  must  only  present  Questions  raised 

BELOW. 

§  683.  The  rule  in  the  United  States  Courts  is, 
that  exceptions  to  the  opinions  given  by  courts  below, 
must  all  be  taken  at  the  time  the  opinions  are  pro- 
nounced. But  when  the  whole  record  is  before  the 
court,  any  exception  appearing  on  it  can  be  taken  by 
counsel  which  could  have  been  taken  below;  and  it  is 
the  duty  of  the  court  to  give  judgment  on  the  whole 
record,  and  not  merely  on  the  points  started  by  coun- 
sel. So,  in  an  early  case  (U.  S.  v.  Burnham,  1  Mason, 
62) ,  the  court  alone  took  notice  of  the  defect,  which 
was  the  sole  ground  of  its  opinion.  And  again  (in 
Patterson  v.  U.  S.  2  Wheat.  222),  it  is  stated,  that 
"  the  points  made  were  not  considered  by  the  court, 
and  judgment  was  pronounced  on  other  grounds ; " 
and  Justice  Washington  therein  said,  "The  court 
considers  it  to  be  unnecessary  to  decide  the  questions 
which  were  argued  at  the  bar,  as  the  verdict  is  so 
defective  that  no  judgment  can  be  rendered  upon  it; " 
and  so  the  judgment  below  was  reversed.^  However, 
in  every  case,  the  objection  must  appear  on  the  record 
by  bill  or  otherwise. 

§  684.  But  the  general  rule  in  other  courts  seems  to 
be  much  more  restricted,  and  requires  everything  to 

^  Garland  v.  Davis,  4  How.  143. 


540  BILLS    or   EXCEPTION".  [Pakt  ITT 

be  disregarded,  which  was  not  objected  to  below,  the 
faihire  to  object  being  considered  a  waiver  of  any 
error  in  the  proceeding,^  and  an  appellate  court  only 
having  authority  to  revise  decisions,  and,  consequently, 
to  consider  only  such  questions  as  were  raised  in  and 
decided  by  the  court  below.'' 

However,  the  Supreme  Court  of  Vermont  coincides 
with  the  United  States  Supreme  Court  so  fai*,  it  seems, 
as  to  hold  that,  if  a  bill  of  exceptions  shov/s  an  erro- 
neous decision  below,  it  need  not  show  an  exception 
at  the*  time  specifically  to  the  ruling,  but  only  that  the 
question  was  raised  and  decided ;  ^  whereas,  I  think, 
the  weight  of  authority  is  not  only  that  an  objection 
must  be  raised  below,  but  also  that  it  must  appear  that 
the  aggrieved  party  excepted  to  the  ruling  of  the  court 
thereon.^  In  Missouri,  it  is  held  that  the  specific 
grounds  of  the  objection  must  be  set  out  in  the  bill.' 
And  in  Indiana,  that  the  bill  must  state  that  the 
ground  of  objection  was  stated  to  the  court  below.'' 

In  Maine,  it  is  held  that  every  matter  of  law  in- 
tended to  be  insisted  on  should,  at  some  part  of  the 
trial,  be  brought  particularly  to  the  notice  of  the 
court,  and  no  question  will  be  considered,  though 
raised  in  argument,  which  was  not  thus  particularly 
presented  to  the  court  below ;  ^  and,  accordingly,  the 
court,  in  a  certain  case,  remarked,  "Every  point  in- 
tended to  be  made  should  be  presented  to  the  judge 

2  Hunt  V.  Nugent,  10  S.  &  ^  Woodburn  v.  Cogdal,  30 
M.  (Miss.)  547.  Mo.  229. 

3  George  v.  School  District,  ">  Fisher  v.  Allison,  46  Ind. 
20  Vt.  499.  594. 

*  Vilas  V.  Downer,  21  Vt.  423.         ^  Parker    v.    Flagg,  26    Me. 
^  Spear  v.  Lomax,  42  Ala.  588.     184. 


CirAP.  v.]       BILLS   MUST    OKLT   PRESENT,  ETC.  541 

at  the  trial  explicitly.  If  that  be  not  done,  he  cannot 
be  expected  to  give  any  opinion  upon  it;  and  if  he 
should  not,  no  exceptions  should  lie  in  reference  to 
any  such  point.  It  is  not  enough  for  a  party  to  say 
he  excepts  to  the  introduction  of  a  witness;  he  should 
explain  why  and  wherefore  he  so  objects."^  So,  in 
Massachusetts,  it  is  held  that  no  question  is  open 
when  the  judge's  attention  had  not  been,  at  the  trial, 
directed  to  the  point.'° 

And  so,  in  ^ew  York,  if  a  party  moves  for  a  new 
trial  upon  a  bill  of  exceptions,  he  must  rely  upon  the 
grounds  taken  and  the  points  made  by  him  upon  the 
trial." 

§  685.  The  general  rule  will  be  more  fully  devel- 
oped, and  its  application  illustrated,  by  reference  to 
particular  topics.  Thus  an  objection  as  to  the  form 
of  an  action  is  waived  if  not  made  below,  as,  for  in- 
stance, if  trover  is  brought  against  a  bailee  to  recover 
for  goods  stolen  from  him.^-  And  as  to  parties,  as  if 
an  assignee  of  a  promissory  note  sues  in  the  name  of 
a  payee.^^  And  as  to  a  defence  made,  as  where,  to  an 
action  on  a  promissory  note,  a  want  of  consideration 
was  pleaded,  and  the  judge  erroneously  ruled  that 
certain  facts  in  evidence  did  not  constitute  a  valid  de- 
fence, to  which  ruling  the  defendant  excepted ;  it  was 
held  that  on  the  hearing  of  the  exceptions  the  plaintiff 
could  not  be  allowed  for  the  first  time  to  object  that 

9  Emery  v.Vinall,  26  Me.  303.  "  Stainy  v.    Brown,  6  Barb. 

^^  Wentworth  v.   Leonard,  4     112. • 
Cush.  417  ;  Alexander  V.  Carew,  ^^  grown    v.   Waternian,    10 

13  Allen,  71  ;  Levi  v.  R.  R.  11     Cush.  118. 
Allen,  303,  and  cases  cited.  ^^  Smith   v.  Moore,  3  Scam. 

(111.)  463. 


542  BILLS   OF  EXCEPTIOI^.  [rART  m. 

the  defence  in  question  was  not  available  to  the  de- 
fendant under  his  answer,^*  and  not  even  if  the  Avi'it 
and  answer  are  referred  to  in  the  exceptions  as  a  part 
of  the  case.'^ 

And  as  to  the  sufficiency  of  an  answer,  as  where,  on 
demurrer  to  the  plaintiff's  evidence,  he  was  nonsuited, 
and  the  bill  of  exceptions  stated  an  agreement  of  the 
parties,  "  that  the  various  legal  questions  arising  in 
the  case  should  be  submitted  to  the  Supreme  Court  as 
upon  a  statement  of  facts ; "  the  question  of  the  suffi- 
ciency of  the  answer  was  held  not  an  open  one.^''  And 
as  to  the  pleadings,  as  where  a  set-off  was  submitted 
to  the  jury,  although  no  denial  thereof  was  in  the  rep- 
lication;'^ or  where  there  was  a  misjoinder  of  plain- 
tiffs not  alleged  in  the  answer,  but  yet  proved  on  the 
trial  by  evidence  not  objected  to,  the  admissibility  of 
such  evidence  cannot  be  objected  to  in  the  appellate 
courtJ®  So  where  an  answer  is  not  fully  responsive 
to  the  plaintiff's  claim,*"  it  must  be  objected  to  below, 
so  that  the  opposite  party  may  have  an  opportunity 
of  amendment.^"  So,  in  an  action  upon  the  guaranty 
of  a  promissory  note,  it  cannot  be  objected  on  bill  that 
the  declaration  only  contained  the  money  counts,  if 
the  objection  was  not  urged  at  the  trial.-^ 

§  686.   As  to  evidence,  it  is  presumed  that  objec- 

^*  Burnett  v.  Smith,  4  Gray,  ^^  Bullock    v.    Hayward,    10 

52.  Allen,  462. 

15  Jones  V.  Sisson,   6   Gray,  ^^  Bligh  v.   James,    6   Allen, 

288.  672. 

i«  R.  R.  V.  Newton,  8  Gray,         20  ^^U  v.   Provident,  &c.  3 

696.  Allen,  98. 

17  Jones  V.  Walcott,  15  Gray,         21  Bickford  v.  Gibbs,  8  Gush. 

542.  154. 


Chap.  V.]       BILLS    MUST    ONLY   PRESENT,  ETC.  543 

tionable  testimony  was  assented  to  if  no  objection  was 
offered  to  it  on  the  trial.--  And  when  a  bill  of  excep- 
tions states  that  a  paity  read  the  record  of  a  snit  as 
evidence,  it  must  be  understood  that  the  entire  record 
was  offered  and  made  evidence,  although  only  a  part 
of  it  was  admissible,  and  unless  it  appears  that  the 
inadmissible  portion  was  objected  to,  it  will  be  pre- 
sumed that  the  objection  was  waived.^^  And  where 
evidence  is  offered  for  a  specific  purpose,  and  rejected, 
the  party  offering  it  cannot  on  exceptions  maintain  its 
admissibility  on  a  ground  not  stated  at  the  trial,^*  and 
the  report  of  a  bill  of  exceptions  should  likewise  give 
all  the  facts  bearing  on  the  objection,-^  and  also  every 
position  respecting  the  admissibility  of  testimony 
should  be  distinctly  presented  to  the  judge  for  decis- 
ion before  it  can  be  made  the  subject  of  exceptions.^^ 

Where  a  deposition,  with  a  paper  annexed,  was  of- 
fered in  evidence,  and  objected  to  generally,  and  the 
objection  was  overruled,  and  the  deposition  and  paper 
read  to  the  jury,  it  was  held  on  exceptions  that  as  no 
specific  objection  was  taken  at  the  trial  to  the  use  of 
the  paper,  the  objection  could  not  afterwards  be 
made.^^ 

And  where  there  was  a  question  of  waiver,  and  an 
objection  was  offered  in  the  appellate  court  to  the 
competency  of  evidence  thereon,  it  was  held  the 
question   was   not   open  to  him,  and  the  court   re- 

^^  Stephens     V.    Lawson,    7  ^  Odiorne  v.  Bacon,  6  Cusb. 

Blackf.  (Ind.)  276.  190. 

23  Hanson  v.  Buckner's  Ex'r,  ^  Lee  v.Oppenheimer,  34  Me. 

4  Dana  (Ky.)  251.  180. 

2*  Wheeler  v.  Rice,  8   Cush.  27  Waters  v.  Gilbert,  2  Cush. 

205.  27. 


544  BELLS    OF   EXCEPTION".  [Part  III. 

marked,  "It  is  the  more  necessary  to  observe  the 
rule  strictly  in  a  case  like  the  present,  where,  if  the 
objection  had  been  seasonably  taken,  the  defendant 
might  have  offered  at  the  trial  further  evidence  on  the 
question  of  waiver  in  lieu  of  that  now  objected  to, 
which  would  not  have  been  open  to  any  exception  on 
the  ground  of  incompetency."  ^** 

The  objection  that  a  question  was  leading  cannot 
be  first  made  in  the  appellate  court.^^ 

In  an  action  on  an  insurance  policy,  where  the 
papers  constituting  the  preliminary  proof  of  loss  are 
not  objected  to  by  the  company  on  the  ground  of  in- 
adequacy, the  company  cannot  be  allowed  afterwards 
to  raise  the  objection,  even  if  the  papers  were  not 
offered  by  the  plaintiff,  and  the  court  did  not  require 
him  to  produce  them.  Say  the  court,  "  It  was  com- 
petent for  them  to  raise  the  objection  at  any  stage  of 
the  trial  after  the  protest  and  survey  were  put  in  evi- 
dence, and  its  weight  and  effect  would  have  been  the 
same  whether  the  evidence  on  which  it  was  based  was 
introduced  by  the  company  or  by  the  plaintiff.  The 
company  was  not  aggrieved,  therefore,  by  the  ruling 
of  the  court,  that  the  plaintiff  was  not  bound  to  offer 
these  documents  in  evidence,  nor  were  they  shut  out 
from  raising  objections  to  the  sufficiency  of  the  pre- 
liminary proof."  '^^ 

And  where  testimony  tending  to  sustain  a  declara- 
tion has  gone  to  the  jury  without  objection,  it  is  held 

28  Leathe  v.  Bullard,  8  Gray,  ^o  Graves  v.  Insurance  Co.  12 
54T.  Allen,  395. 

-9  Bennett  v.  Clemence,  6  Al- 
len, 11. 


Chap.  V.]  BILLS   MUST   ONLY   PRESENT,  ETC.  54c5 

that  exception  cannot  be  taken  that  the  court  permit- 
ted a  verdict  to  be  given  on  insufficient  testimony."" 

It  is  held,  in  Pennsylvania,  that  the  proper  course 
for  a  court  to  pursue,  where  testimony  has  been  re- 
ceived without  objection,  is  to  refuse  afterwards  to 
sign  a  bill  of  exception  thereon,  and  leave  the  party 
to  a  request  for  an  instruction  to  the  jury  to  disregard 
it*  An  allowance  of  such  an  exception,  however,  does 
not  rendor  it  valid.  The  Supreme  Court  may  still 
treat  it  as  too  late,  and  disregard  it.^~ 

§  687.  The  objection  of  variance  between  the  alle- 
gations in  a  petition  for  review,  and  the  proof  at  the 
hearing,  cannot  be  first  raised  in  the  appellate  court,^' 
nor  between  an  indictment  and  the  proof*  And  the 
general  rule  is  thus  stated  by  the  Supreme  Court  of 
Vermont :  "  l^o  objection  on  the  ground  of  variance, 
which  was  not  raised  in  the  County  Court,  and  which 
might  there  have  been  obviated  by  amendment,  should 
be  sustained  in  this  court,  unless  the  variance  is  both 
apparent  on  the  record  and  of  such  a  character  that 
the  judgment,  if  affirmed,  would  fail  to  protect  the 
parties  in  reference  to  the  matter  actually  litigated."  ^' 
And  again:  "It  is  a  general  rule  that  the  Supreme 
Court  will  not  revise  any  questions  except  such  as 
appear  to  have  been  raised  in  the  court  below;  and 

*  But,  as  we  have  seen,  this  is  not  generally  allowed  to  be 
done. 


31  Stearns  u.  Bliss,  12  Vt.  577.         ^4  gtate  v.  Chandler,   15  Vt. 

S2  Duvall's  Ex'r  v.  Dailey,  38  425. 
Pa.  St.  58.  35  Peck  v.  Thompson,  15  Vt. 

33  Hutchinson  v.  Gurley,  8  644. 
Allen,  23. 

35 


546  BILLS   or   EXCEPTIOl^'.  [Part  III. 

this  rule  applies  with  peculiar  propriety  to  questions 
of  variaii(3e  which,  if  raised  in  the  County  Court,  can 
generally  be  removed  either  by  further  proof  or  by 
amendment."  ^^ 

And  so  an  objection,  founded  on  an  alleged  variance 
between  the  proof  and  the  declaration  in  respect  to  the 
consideration  of  a  contract,  must  be  made  below.^^ 

§  688.  !Nor  can  the  question  whether  a  verdict  is 
against  the  evidence  be  raised  on  a  bill  of  excep- 
tions^^—  not  even  in  a  criminal  case  in  general.'^^ 

And  no  exception  lies  on  account  of  error  in  stat- 
ing the  evidence  to  the  jury,  unless  the  attention  of 
the  judge  is  called  to  it  at  the  time.^*^  And  the  rule 
applies  as  well  to  the  court  acting  as  a  jury.'*' 

§  689.  In  general,  it  is  not  non-direction,  but  mis- 
direction, that  can  be  excepted  to.  And  so  one 
cannot  object  that  certain  instructions  were  not  given 
below,  unless  he  asked  for  them  specifically.^^  Thus, 
if  a  court  is  not  requested  to  charge  as  to  the  nature 
and  effect  of  a  written  instrument  in  evidence,  the 
omission  to  do  so  is  not  a  ground  of  exception,  unless 
the  liability  of  the  party  is  to  be  solely  determined  by 
the  legal  construction  to  be  put  upon  it,^^  or  as  to  the 
effect  of  testimony;^  for,  although  it  is  held  that 
where  the  court  assumes  to  charge  at  all,  it  should 
charge  the  whole  of  the  law  applicable  to  the  case, 

86  Brintnalli;.  R.R.32  Vt.6T3.  «  State  Bank   v.   Conway,  8 

37  Gregory y.Gleed, 33  Vt. 409.  Eng.  (Ark.)  353. 

^^  Walker    v.    Penniman,     8  ^  Brigham  v.  Wentworth,  11 

Gray,  233.  Gush.  126. 

39  Commonwealth  v.   Morris,  ^^  Badger  v.   Bank,   &c,,   26 

1  Cush.  394.  Vt.  434. 

*<>  Cutler  V  Welsh,  43  N.  H.  ^  Purrington    v.  Pierce,  38 

497.  Me.  449. 


CiiAP.  v.]         BILLS   MUST   ONLY  PRESENT,  ETC.  547 

yet  the  party,  even  in  a  criminal  case,  waives  the  right 
to  object,  if  he  does  not  specially  call  the  attention 
of  the  conrt  to  the  point  which  he  desires  presented.^^ 

And  so  where,  in  an  action  on  a  contract,  the  de- 
fendant, on  cross-examination,  testified  that  he  had 
no  objection  to  paying  the  debt,  and  the  plaintiff's 
counsel  argued  to  the  jury  that  the  debt  was  thereby 
admitted,  but  no  ruling  was  asked  or  admitted  on  that 
point,  it  was  held  the  plaintiff  had  no  ground  for 
exception.'*''' 

In  Louisiana,  even  where  the  judge  refused  to 
grant  a  trial  by  jury,  but  the  bill  of  exceptions  did 
not  set  out  the  reasons  of  the  judge  for  his  refusal, 
nor  the  grounds  on  which  the  ruling  was  excepted  to, 
the  Supreme  Court  refused  to  take  cognizance  of  the 
matter.^^ 

§  690.  As  to  instructions  actually  given,  the  objec- 
tion must  be  made  known  below  also.  Thus  it  is 
said,  in  a  certain  case,  "  It  is  objected  that  the  plain- 
tiff is  not  entitled  to  damages  for  infringements  com- 
mitted anterior  to  the  re-recording  of  his  patent,  and 
that  the  jury  were  not  correctly  instructed  on  that 
subject.  The  charge  imports  a  general  liability  of 
the  defendants,  and  no  intimation  is  given  that  their 
liability  ought  to  be  so  qualified.  This  point  was  not 
raised  at  the  trial.  The  court  was  not  requested  to 
instruct  the  jury  otherwise,  nor  was  a  specific  excep- 
tion taken  to  the  direction  as  given.     If  the  defend- 

^^  Cato  (a  slave)  v.  State,  9  ^^  Briggsv.  Rafferty,  14  Gray, 
Fla.   176;  Chamberlaia  v.  For-     525. 

ter,  9  Min.  260.  47  Davis  v.  Millandon,  14  La. 

An.  808. 


548  BILLS    OF   EXCEPTION.  [Part  IIL 

aiits  wished  more  definite  instructions,  or  desired  that 
those  given  sliould  be  qualified,  tliey  should  have 
called  the  matter  to  the  notice  of  the  court,  that  the 
mistake,  if  one,  might  have  been  then  rectified.  'No 
advantage  can  now  be  taken,  if  an  error  has  been  so 
committed."  *^  And  the  court  of  JS^orth  Carolina  quite 
sharply  criticises  such  attempts,  and  says,  "If  there 
was  any  error,  it  was  but  just  to  the  judge  that  his 
attention  should  be  called  to  it  in  order  that  he  might 
correct  it,  and  the  law  requires  that  it  should  be  so. 
"We  are  reasonably  indulgent  of  mere  irregularities  in 
the  cases  sent  up,  if  we  can  get  at  the  merits,  but  we 
cannot  allow  cases  to  be  flung  at  us  in  disorder,  in 
the  hope  that  some  advantage  may  be  gained  by  acci- 
dent, or  that  we  will  pass  by  all  errors  on  the  part  of 
the  appellant,  in  order  to  get  errors  on  the  part  of  the 
appellee.     The  burden  is  on  the  apjDellant."  ^^ 

And  where,  in  an  action  on  a  promissory  note,  to 
which  the  defence  was  breach  of  warranty,  and  false 
and  fraudulent  representations,  the  defendant  con- 
tended that  the  burden  of  proof  was  on  the  plaintiff, 
and  that  if,  on  the  whole  evidence,  the  jury  were  in 
doubt  upon  the  warranty  or  the  fraud,  the  defendant 
should  have  the  benefit  of  the  doubt,  but  requested  no 
instructions  beyond  what  the  judge  gave,  namely, 
that  the  production  of  the  note  made  a  prima  facie 
case,  and  the  plaintifl"  would  be  entitled  to  recover 
unless  it  appeared  that  there  was  a  breach  of  war- 
ranty, or  false   representations,   as   claimed   by  the 

48  Emerson  v.  Tlogg,  2  Blatch.  ^^  Sampson  v.  R.  R.  TO  N.  C. 

(U.  S.)  13.  406. 


Chap.  V.]      BELLS    MUST    ONLY   PRESENT,  ETC.  549 

defendant,  it  was  held  there  was  no  ground  for  the 
defendant  to  except.^" 

§  691.  The  ruhng  of  the  court  on  an  objection  of- 
fered must  be  excepted  to  at  the  time,  and  so  appear 
in  the  bill  of  exceptions,  as  also  the  ruhng  itself  must 
be  set  out.^^  In  Maine,  where  there  are  no  exceptions 
taken  on  a  judge's  rulings  as  to  matters  of  law,  the 
case  is  considered  in  the  Supreme  Court  as  on  report 
from  the  justice  before  whom  it  is  heard.^^ 

§  692.  In  an  action  for  services  rendered,  defend- 
ants requested  a  ruling,  that  if  the  services  were  vol- 
untarily rendered,  and  not  necessarily  beneficial,  they 
created  no  debt  without  a  subsequent  promise  to  pay 
for  them.  This  was  refused,  but  an  instruction  was 
given  that  the  jury  could  find  for  the  plaintiff  if  they 
found  that  the  services  were  performed,  and  the  de- 
fendants subsequently  promised  to  pay  for  them;  no 
question  was  raised  as  to  the  effect  of  such  promise, 
if  made.  Held  that  the  defendants  could  not  at  the 
argument  of  exceptions  to  this  instruction  for  the  first 
time  object  that  such  promise,  if  made,  rested  only  on 
an  executed  consideration.^^ 

§  693.  The  legality  of  a  meeting  cannot  be  ques- 
tioned first  in  the  appellate  court.^* 

§  694.  A  party  cannot  avail  himself  of  a  defence 
under  the  statute  of  limitations  unless  it  was  inter- 
posed in  the  court  below.^^ 

^^  Packard  v.  Clapp,  11  Gray,  ^^  Chamberlain    v.  Whitford, 

124.  102  Mass.  448. 

^^  Pomeroy's  Lessee  v.  State  ^  Hart  v.  Holden,  55  Me.  574. 

Bank,  1  Wall.  (U.  S.)  592.  ^  Wilson  v.  Van   Winkle,  2 

52  Banchor  v.  Mansell,  47  Me.  Gil.  687. 
60. 


550  BILLS    OF    EXCEPTIC«Sr.  [Part  III. 

§  695.  IS^or  can  a  verdict  be  corrected  iu  the  appel- 
late court,  where  it  appears  that  a  defendant  has 
through  accident  or  misapprehension  allowed  pay- 
ments made  after  the  decease  of  an  intestate,  and 
which  might  have  been  recovered  back,  to  be  deducted 
without  objection  to  the  plaintiff's  claim.^"  ^or  can 
the  objection,  that  the  true  consideration  in  a  contract 
of  guaranty  is  not  set  out  in  a  declaration  first  be 
taken  at  the  hearing  of  exceptions  in  the  appellate 
court,  ^or  that  instructions  were  not  given  as  to  the 
distinction  between  a  pledge  and  a  mortgage  when 
these  were  not  requested.^" 

§  696.  Where  a  bill  of  indictment  charged  the  steal- 
ing of  an  ox,  and  the  bill  of  exceptions  did  not  show  that 
any  question  was  made  below  as  to  whether  the  ani- 
mal was  alive  or  dead  when  stolen,  it  was  held  too 
late  to  rely  upon  matters  in  the  appellate  court,  tend- 
ing to  show  that  the  ox  was  dead  when  stolen.^^  And 
whether  a  person  obtaining  goods  by  false  pretences 
is  guilty  of  a  felony  is  not  an  open  question,  unless 
the  point  was  brought  up  in  the  lower  court.^^ 

§  697.  Wliere  a  party  took  exceptions  to  the  ad- 
mission in  evidence  of  the  records  of  proprietors  of 
lands  held  in  common  in  Massachusetts,  solely  on  the 
ground  that  the  proprietors  were  not  such  as  were 
authorized  by  the  statutes  to  form  themselves  into  a 
corporation,  and  liberty  was  given  by  the  judge  to 
refer  to  the  records  in  the  argument  on  the  exceptions, 

^  Haverhill    Loan,     &c.,    V.  ^^  State  v.  Jenkins,  6   Jones 

Cronin,  4  Allen,  144.  (N.  C.)  19. 

^7  Conillard  v.  Duncan,  6  Al-  ^^  Abbott  v.  Marshall,  48  Me. 

len,  440.  64. 


Chap.  V.]        BILLS   INIUST   ONLY   PRESENT,  ETC.  551 

it  was  held  that  the  party  must  he  confined  to  the  spe- 
cific objection  taken  by  him  at  the  trial,  and  that  there- 
fore he  could  not  object  that  the  records  did  not  show 
that  the  proprietors,  in  organizing  themselves  as  a  cor- 
poration, proceeded  in  all  particulars  conformably  to 
the  requisitions  of  the  statutes.*'^ 

§  698.  In  Massachusetts,  on  the  report  of  the  pre- 
siding judge,  and  at  the  argument  before  the  full 
court,  the  breach  of  a  warranty  in  a  policy  of  insur- 
ance not  alleged  in  the  answer,  nor  relied  on  at  the 
trial,  cannot  then  be  taken  advantage  of.*"'^  And  in 
Illinois,  where  a  bill  of  exceptions  contains  all  the 
evidence  in  the  case,  which  is  insufficient  to  warrant 
the  finding  of  the  jury,  yet  if  no  exception  is  taken 
to  the  decision  of  the  court  overruling  the  motion  for 
a  new  trial  at  the  time  it  was  announced,  that  decision 
cannot  be  assigned  for  error .^^ 

§  699.  "Where,  in  an  action  against  the  indorser  of 
a  bill,  the  defendant  moved  for  a  nonsuit,  without  stat- 
ing any  specific  objection  to  the  notice  of  j^rotest,  and 
the  motion  was  denied,  it  was  held  that,  on  a  motion 
for  a  new  trial  on  a  bill  of  exceptions,  the  sufficiency 
of  the  notice  could  not  be  inquired  into."^ 

And  an  objection  that  the  declaration  does  not 
allege  defendants  to  be  common  carriers  must  be 
made  below." 

§  700.   Where  a  bill  of  exceptions  showed  that  the 

^^  Howard   v.    Hay  ward,    10  ^^  Cowperthwaite  v.  SheflSeld, 

Met.  409.  3  Comst.  (N.  Y.)  243. 

61  Denny  v.  Ins.  Co.  13  Gray,  ^4  Sanford  v.  R.  R.  11  Gush. 
492.  155. 

62  Pottle  V.  McWorter,  13  111. 
454. 


552  BILLS   OF   EXOEPTION^.  [Part  III. 

copy  of  a  will  was  objected  to  on  the  trial,  "  because 
not  authenticated  according  to  law,"  and  "  because  the 
said  paper  had  not  been  filed  in  court  according  to 
law,"  but  the  precise  character  of  the  objections  was 
not  stated,  and  yet,  in  argument,  it  was  urged  that 
the  certificate  of  the  clerk  was  insufilcient  for  want 
of  a  seal,  and  the  exhibit  was  filed  during  the  term  at 
which  the  cause  was  tried,  and  without  the  one  day's 
notice  required  by  a  rule  of  chancery  practice,  it  was 
held  that  the  objections  were  not  sufficiently  specific, 
and  that,  as  it  did  not  appear  that  they  were  made,  or 
could  have  been  made,  in  the  court  below,  they  could 
not  avail  in  the  appellate  court.*^^ 

§  701.  If  evidence  of  a  declaration  made  in  the 
presence  of  a  party  to  a  contract,  without  reply  from 
him,  is  objected  to  on  the  sole  ground  that  the  decla- 
ration was  not  heard  by  him,  and  the  evidence  is  sub- 
mitted to  the  jury  with  instructions  to  disregard  it 
unless  satisfied  that  the  party  heard  the  declaration, 
the  objection  cannot  be  taken  for  the  first  time  in  the 
appellate  court  at  the  hearing  on  exceptions,  that  the 
declaration  was  not  such  as,  if  heard,  called  for  a 
reply.^^ 

65  Ingram  v.  Smith,  1  Head  ^6  Hildreth  v.  Martin,  3  Allea, 
(Tenn.)  412.  Z*ll. 


Chap.  VI.J  GENERAL    EXCEPTION'S.  553 


CHAPTER   YI. 

General  Exceptions. 

§  702.  Sometimes  general  exceptions  are  allowable 
and  sufficient;  at  other  times  generality  is  a  fatal 
fault.  Thus  it  is  held  that  exceptions  to  either  a 
general  or  special  charge  relate  only  to  questions  sub- 
mitted to  the  jury,  and,  as  we  saw  in  the  last  chapter, 
questions  not  submitted  cannot  be  made  the  subject 
of  an  exception.  And,  therefore,  when  all  of  the 
instructions  given  by  the  court  as  to  the  questions 
submitted  are  erroneous,  a  general  exception  is  suffi- 
cient, although  other  propositions  may  have  been  cor- 
rectly stated.  And  it  is  held  too  much  to  say  that  a 
general  exception  to  a  charge  is  an  exception  to  every 
word  in  it,  and,  therefore,  bad,  if  there  be  one  word 
of  truth  in  the  whole  charge,  which,  in  the  very 
baldest  cases,  may  ordinarily  be  taken  for  granted.^ 
"Where  the  court  finds  the  facts  even,  but  announces 
the  decisions  of  law  separately,  a  general  exception 
is  sufficient  in  these  terms :  "  The  plaintiff  excepts  to 
the  decision  of  the  court  upon  the  trial  of  this  action 
upon  the  matters  of  law  "  [and  equity  in  an  equitable 
case].^ 

Upon  the  trial  of  a  cause  before  a  judge,  a  general 
exception  to  the  decision  of  the  judge,  di'awing  a 

^  Schenck  v.  Andrews,  57  ^  Ludlow  v.  Oilman,  18  Wis. 
N.  Y.  149.  581. 


554  BILLS    OF    EXCEPTION.  [Part  III. 

single  conclusion  of  law  from  an  undisputed  state  of 
facts,  is  available  on  appeal.^ 

And  where  separate  demurrers  are  filed  to  different 
paragraphs  of  an  answer,  the  demurrer  to  each  calls 
the  attention  of  the  court  to  each  particular  para- 
graph; and  upon  the  demurrers  being  sustained  as  to 
some,  an  exception  to  the  ruling  is  sufficient,  without 
stating  that  it  was  taken  to  the  decision  upon  each  par- 
ticular paragraph.* 

And  as  to  the  introduction  of  evidence,  although  it 
is  the  general  rule  that  the  ground  of  the  objection 
must  be  shown,  yet  to  this  rule  there  may  be  excep- 
tions depending  upon  the  character  of  the  proposed 
evidence,  as  that  it  may  be  so  plainlj''  incompetent  for 
all  purposes  that  a  general  objection  to  its  introduc- 
tion will  be  sufficient.^ 

§  703.  But  it  is  plain  that  a  general  exception  to 
partial  error  is  unavailable,  since  it  blends  together 
undistinguishably  what  is  proper  and  what  is  im- 
proper, and  thus  makes  confusion.  And  so  a  general 
exception  to  a  charge  cannot  be  entertained  if  any 
part  of  it  is  correct."  And  so  a  mere  note  that  "  the 
defendant's  counsel  excepted,"  is  too  general,  and 
cannot  be  regarded  as  an  exception.^  And  if  there 
be  a  series  of  decisions,  a  general  exception  will  not 
hold  if  a  single  one  is  correct;^  as,  for  example, 
where  no  special  exceptions  are  taken  to  the  rulings 

8  Pratt    V.    Foote,     5    Seld.  «  jjowland  v.  Willetts,  5  Seld. 

(N.  Y.)463.  (N.  Y.)  in. 

4  Flatter  v.  McDermott,  15  "'  French  v.  White,  7  Duer 
Ind.  390  (note).  (N.  Y.)  254. 

5  Cheatham  v.  Riddle,  8  Tex.  ^  Elton  v.  Markham,  20  Barb. 
162.  346. 


Chap.  VI]  GENERAL   EXCEPTIONS.  555 

ad  they  occur  during  the  trial,  but,  at  the  close  of  the 
case,  there  is  a  single  exception  to  all  the  rulings,  this 
■will  not  prevail,  unless  all  the  rulings  are  erroneous.^ 

A  general  exception  to  a  charge  can  only  be  sus- 
tained where  the  charge  consists  of  a  single  proposi- 
tion, or  else  where  the  whole  scope  of  the  charge 
asserts  and  explains  a  single  question  or  principle/" 
And  this  is  founded  on  the  principle  to  which  we 
have  previously  adverted,  that  the  design  of  a  bill  of 
6xceptions  is  not  to  draw  the  whole  matter  into  con- 
troversy again;  ^^  and  bills  containing  superfluous 
and  irrelevant  matter  are  held  highly  censurable,  as 
casting  increased  labor  upon  the  court  and  increased 
expense  upon  parties,'^  so  that  the  whole  of  a  volumi- 
nous charge  should  never,  or  rarely,  be  presented. 

Yet  enough  must  be  set  out  to  show  the  error  com- 
plained of;  and  so,  where  only  a  portion  was  set  out, 
under  the  general  exception,  "  To  the  giving  of  all 
such  instructions  plaintiff  at  the  time  excepted,"  and 
the  record  showed  that  other  instructions  had  been 
given,  some  of  which  were  acknowledged  to  have 
been  correct,  the  court  remarked,  "  Grouping  the  in- 
structions given  by  the  court,  and  those  given  on  the 
motion  of  the  defendant,  and  excepting  to  all  of  them 
in  this  general  manner,  some  of  them  being  good 
will  not  enable  the  plaintiff  to  select  a  portion  of 
them,  and  have  those  reviewed  by  tliis  coui't."  ^^ 

s  Cronk  v.  Canfield,  31  Barb.  '^  Lincoln  v.  Claflin,  1  Wall. 

172.  137. 

10  Robinson  v.  R.  R.  27  Barb.  ^^  McCaleb  v.  Smith,  24  Iowa, 
619.  591. 

11  Ex    parte    Crane,    5    Pet. 
(U.  S.)199. 


5b(j  BILLS    OF   EXCEPTION.  [Part  III. 

And  a  general  exception  to  the  correctness  of  an 
average  adjustment  and  apportionment,  passed  upon 
by  a  referee,  does  not  entitle  an  appellant  to  argue 
that  the  referee  erred  in  regard  to  some  of  the 
items.  ^^ 

In  Iowa,  the  rule  is  so  closely  followed,  that  it  is 
held  that  even  if  a  single  paragraph  in  a  whole  series 
of  instructions  is  correct,  a  general  exception  is  nu- 
gatory.'^ 

It  is  in  no  wise  different  in  a  criminal  case.^*' 

In  ]^ew  Hampshire,  however,  the  court  will  enter- 
tain a  cause  on  points  raised  in  argument,  even  when 
a  general  exception  to  a  charge  is  overruled  for  gen- 
erality.^" This  perhaps  may  happen  anywhere  in 
special  cases,  where  the  record  itself  affords  other 
matters  on  which  the  court  can  act,  and  to  which  the 
argument  is  confined. 

In  a  motion  for  a  new  trial,  on  the  reasons  that 
"  error  of  law  accrued  at  the  trial,  and  was  excepted 
to  at  the  time,"  and  "  the  court  erred  in  its  instruc- 
tions to  the  jury,"  the  reasons  were  held  insufficient 
to  support  the  motion,  on  account  of  their  generality 
and  vagueness.'*^ 

An  exception  to  the  refusal  of  the  court  to  charge 
is  subject  to  the  same  rule  as  one  to  the  giving  of 
instructions.^^ 
•  §  704.  Where  an  instruction  or  conclusion  of  law 

1*  Jones  V.  Bridge,  2  Sweeney  ^'^  Reynolds  ;;.  R.  R.  43  N.  H. 

(N.  Y.)  431.  588. 

15  Meershon  v.  Ins.  Co.  34  ^^  Elliott  v.  Woodward,  18 
Iowa,  88.  Ind.   185. 

16  Jenks  V.  State,  17  Wis.  666.  ^^  Sumner  i^.Blair,  9  Kan,  531. 


Chap.  VII.]  SPECITIC    EXCEPTIONS.  557 

is  in  general  correct,  but  subject,  perhaps,  to  a  mod- 
ification in  some  particular  not  affecting  its  general 
correctness,  a  general  exception  is  improper .^° 

§  705.  Maryland  would  seem  to  be  an  exception  in 
the  maintenance  of  the  general  rule,  since  it  has  there 
been  held,  that,  where  sevei^al  distinct  and  separate 
questions  are  submitted  to  the  decision  of  the  court 
by  requests  for  instructions,  the  decision  of  one  of 
which  does  not  supersede  the  necessity  of  determin- 
ing the  others,  an  exception  in  general  terms  must  be 
regarded  as  if  each  question  raised  had  been  sepa- 
rately determined,  and  formed  the  subject  of  an  inde- 
pendent bill  of  exceptions.^^ 


CHAPTER  yn. 

Specefic  Exceptioi^^s. 

§  706.  A  sucoiN'CT  definition  of  specific  exceptions 
was  given  in  an  early  case  in  Vermont  in  substance 
that  it  is  such  a  statement  of  the  matters  complained 
of  as  that  nothing  is  left  to  conjecture,^  the  definite  law 
points  being  set  forth  explicitly.^  It  is  not  in  general 
necessary  that  the  reasons  given  by  the  court  below 
for  its  decision  should  be  set  out,  but  only  what  the 
decision  was,  with  so  much  of  the  proceedings  as  may 

20  Knox  V.  Webster,  18  Wis.  ^  Adams  v.  Ellis,  1  Aik.  27. 
426.  ^  Richardson    v.    Denison,    1 

21  Bank  v.  Bank,  10   Gill.  &  Aik.  210. 
John.  357. 


558  BILLS    OF   EXCEPTIOTT.  [Par r  III. 

be 'needful  in  order  to  understand  the  bearing  of  the 
decision  upon  the  case  at  bar.^ 

§  707.  If  evidence  which  is  admissible  for  any  pur- 
pose is  admitted,  and  it  is  incompetent  upon  a  partic- 
ular branch  of  the  case,  and  no  specific  exception  is 
taken,  or  ruling  asked  for,  the  general  exception  to 
its  admission  will  be  overruled.* 

§  708.  A  'New  York  case  aptly  sets  forth  the  prin- 
ciple in  its  bearing  upon  testimony  in  a  capital  trial 
thus :  "  The  bill  of  exceptions  does  not  profess  to  set 
out  all  the  evidence  given  on  the  trial,  nor  all  given 
by  this  witness.  How  these  statements,  apparently 
altogether  unimportant,  came  to  be  made,  or  whether 
they  were  or  were  not  circumstances  casually  men- 
tioned in  the  course  of  an  extended  narrative,  can 
hardly  be  collected  from  what  appears.  I  certainly  do 
not  perceive  their  relevancy,  nor  any  ground  on  which 
they  could  have  been  desired  by  the  district  attorney. 
They  seem  to  be  fragments  of  a  narrative  which,  taken 
as  a  whole,  may  have  been  not  only  material,  but  com- 
petent, although  these  disjointed  parts  are  apparently 
as  little  relevant  to  the  case  as  they  are  coherent 
among  themselves.  .  .  .  The  objection  taken  w^as  to 
all  evidence  of  the  acts  of  the  witness  when  the  pris- 
oner w^as  not  present.  This  was  too  broad.  Many 
things  done  by  the  witness  might  be  competent  evi- 
dence, although  done  when  the  prisoner  was  absent. 
Under  this  objection,  if  allowed,  the  witness  could 
not  have  stated  where  he  was  at  any  time,  or  anything 
done  by  him,  unless  the  prisoner  was  present.    In  the 

^  Carey  I' Eice,  2Kelley  (Ga.)  ^Packer  v.  Lockman,  115 
407  Mass.  12. 


Chap.  VII.]  SPECIFIC    EXCEPTIOlSrS.  559 

form  in  which  the  objection  was  taken,  it  was  prop- 
erly overruled ;  and  before  we  can  say  that  there  was 
error  in  receiving  these  fragments  of  the  testimony 
of  the  witness,  which  are  inserted  in  the  bill  of  excep- 
tions, it  mnst  be  shown  that  they  were  particularly 
objected  to  or  insisted  upon  as  competent  evidence, 
and  received  as  such,  or  the  whole  of  the  testimony 
given  by  the  witness  must  be  stated,  that  the  court 
may  see  that  these  particular  parts  were  objection- 
able."^ 

§  709.  Both  the  decision  complained  of  and  the 
errors  therein  are  to  be  specified  distinctly,  so  that 
nothing  shall  be  left  to  suraiise  or  conjecture  m  the 
appellate  court." 

§  710.  In  Maine,  the  court  say,  ''  Questions  of  lasv 
arising  during  a  trial  may,  in  this  state,  be  reserved 
by  a  bill  of  exceptions  in  a  summary  mode,  as  well  as 
by  a  report  of  the  presiding  judge.  "When  the  latter 
mode  is  adopted,  it  must  appear  by  the  report  that 
certain  questions  of  law  were  expressly  reserved,  to 
be  decided  by  the  full  court.  A  mere  statement  that 
certain  instructions  were  given  or  refused  does  not 
constitute  a  reservation  of  them  for  future  decision."^ 

§  711.  Where  objections  were,  that  a  certain  lot 
was  not  legally  taxed,  that  the  proceedings  to  author- 
ize the  sale  were  not  in  conformity  with  the  statute, 
according  to  the  evidence  as  it  stood,  and  therefore  a 
lease,  under  which  the  plaintiff  claimed,  not  warranted, 
and  void,  the  decision  of  the  court  being  that  the  tax 

^  People  V.  Bodine,  1  Denio  "<  Sanford  v.  Lebanon,  31  Me. 
(N.  Y.)313.  126. 

^  Weathers  v.  Doster,  6  Ga. 
228. 


560  BILLS    OF   EXCEPTION".  [Part  III. 

was  legally  imposed,  and  the  proceedings  regular, 
and  the  court  thereon  directing  a  verdict  for  the 
plaintiff,  it  was  objected  that  the  exceptions  were  not 
specific  enough  to  be  available  in  the  appellate  court; 
but  the  court  held  them  sufficiently  specific.^ 

§  712.  An  exception  to  a  charge,  "  and  every  part 
thereof,"  is  not  sufficiently  explicit,  unless  the  charge 
is  wholly  erroneous ;  the  specific  portions  excepted  to 
must  be  pointed  out.^° 

And  where  causes  are  tried  by  the  court  on  issues 
of  fact,  the  exceptor  must  make  his  exceptions  so 
specific  as  to  show  whether,  upon  appeal,  he  desires 
to  review  the  judge's  finding  of  facts,  or  his  con- 
clusions of  law  thereon,  or  both.  And  where  there 
are  several  facts  found,  or  conclusions  of  law  stated, 
the  exceptions  must  show  to  which  objection  is 
made." 

The  particular  reasons  for  requiring  the  specifica- 
tion of  the  particular  points  in  the  charge,  or  the 
omission  to  charge,  which  are  excepted  to,  are  two- 
fold ;  (1)  To  bring  the  matter  to  the  attention  of  the 
court  below  for  correction;^-  and  (2)  To  set  out  the 
error  clearly  before  the  appellate  court  for  decision 
thereon. 

§  713.  An  objection  to  a  deposition  that  it  "  is  not 
taken  in  due  form  of  law,"  is  not  available,  not  being 
explicit,  and  merely  general." 

8  Hubbell  V.  Weldon,  Hill  &  "  Oilman  v.  Thiess,  18  Wis. 
Denio  (N.  Y.)  145.  528. 

9  Tomlinson  v.  Wallaop,  16  ^^  Goodwin  v.  Perkins,  39 
Wis.  235.  Vt.  605. 

^'^  Hicks  V.  Coleman,  25  Cal.  ^^  Manning    v.   Gasharie,   27 

146.  Ind.  399. 


Chap.  VII.]  SPECrFIC   EXCEPTION'S.  561 

§  714.  The  rule  that  a  general  exception  to  a  scries 
of  instructions  is  unavailable  if  any  one  of  them  is 
correct,  is  relaxed,  in  Indiana,  so  that  an  objection 
need  not  be  specific,  but  may  be  general,  if  the  charge 
is  an  entirety,'*  the  court  going,  I  suppose,  upon  the 
principle  that,  in  a  connected  chain,  the  breaking  of 
any  link  severs  the  chain,  and  "tenth  or  ten-thou- 
sandth breaks  the  chain  alike."  Well,  perhaps  so; 
but  this  is  certainly  not  the  general  rule. 

§  715.  Wliere  an  instruction  is  requested  and  re- 
fused, that  the  action  on  trial  cannot  be  maintained, 
the  bill  of  exceptions  must  show  specifically  on  what 
ground  the  request  was  made,  in  order  to  render  the 
refusal  reviewable.'^ 

§  716.  Exceptions  must  be  taken  to  the  specific 
rulings  during  the  progress  of  the  cause. '^ 

§  717.  It  is  held,  however,  that  an  exception  to 
conclusions  of  law  merely  is  not  held  to  the  same 
strict  rule  as  excepting  to  a  charge.  Where  a  charge 
is  good  in  part  and  bad  in  part,  the  exception  must 
specifically  point  out  the  portion  complained  of  as 
erroneous,  so  that  the  court  may  have  an  opportunity 
to  correct;  but  exceptions  to  conclusions  of  law  come 
after  the  power  to  rectify  has  passed  from  the  court, 
so  that  the  reason  for  the  strict  rule  in  the  former 
case  fails. '^ 

§  718.  In  an  Indiana  case,  the  conclusion  of  a  bill 
of  exceptions  was,  "Whereupon  the  plaintifi"  at  the 

1*  Hersleb  v.   Moss,  28  Ind.  ^^  Harrison  t'.Bartlett,  51  Mo. 

358.  no. 

^^  Lawrence  v.  Chase,  64  Me.  ^^  Newlin  v.  Lyon,  49  N.  Y. 
196.  661. 

36 


562  BILLS    OF   EXCEPTIOIT.  [Part  IIL 

time  noted  exceptions  on  the  mai-gin  of  a  part  of  the 
charges  given  by  the  court  to  the  jury,  and  at  the 
time  excepted  to  each  of  the  charges  severally,  upon 
which  exceptions  were  noted  on  the  margin  thereof 
at  the  time,"  and  the  court  announced  that  they  were 
unable  to  determine  therefrom  whether  the  plaintiff 
excepted  to  each  and  all  of  the  instructions  given,  or 
only  to  such  as  had  the  exceptions  noted  on  the  mar- 
gin. And  the  difficulty  was  rendered  the  more  in- 
surmountable by  the  clerk  noting  that  there  were 
no  instructions  on  file  with  exceptions  entered  on  the 
margin. ^^ 

§  719.  In  regard  to  stating  evidence,  a  bill  must 
also  be  definite.  Thus,  where  it  was  stated  that  a 
record  was  offered  to  show  an  outstanding  title,  which 
the  court  rejected,  &;c. ;  and,  again,  that  the  defendant 
offered  evidence  to  attack  the  correctness  of  the  sur- 
veyor's record,  and  to  show  frauds  in  certain  dates  of 
location  and  survey,  which  was  ruled  out  by  the  court, 
the  exceptions  were  held  too  vague  and  uncertain  in 
not  stating  what  the  evidence  was.^°  And  so  a  state- 
ment that  testimony  was  introduced  tending  to  show, 
&c.,  has  been  held  unavailable  from  want  of  explicit- 
ness.^"  And  so,  to  enable  an  appellate  court  to  deter- 
mine whether  the  sayings  of  a  person  proposed  to  be 
given  in  evidence  were  properly  admitted,  the  expres- 
sions must  be  given ;  and,  unless  exceptions  are  plain- 
ly and  distinctly  set  forth,  they  cannot  be  considered.^^ 
And  where  the  court  excludes  the  answer  of  a  witness, 

^8  Cobb    V.    Krutz,   40    Ind.  20  Walker  v.  Lessee,  2  Ohio 

324.  St.  693. 

19  Styles  V.Gray,  10  Tex.  503.         21  cieghorn    v.  Love,  24  Ga. 

691. 


Chap.  VU.]  SPECEFIC   EXCEPTION'S.  563 

or  rather  refuses  to  allow  the  witness  to  answer  at  all 
a  particular  question,  the  exceptor  must  show  by  his 
bill  what  he  exi^ected  or  believed  the  witness  would 
prove  in  response,  for  otherwise  the  court  cannot  say 
that  the  rejection  of  the  answer  was  prejudicial.-^ 
And  so,  objections  to  the  reading  of  evidence  and  ex- 
hibits in  chancery  must  be  clear  and  specific.-^ 

§  720.  Where  it  was  said,  "  The  court  charged  as 
on  file,  to  which  plaintiff  excepted,  and  asked  the 
court  to  instruct  as  in  paper  on  file,  which  was  re- 
fused, and  plaintifi"  again  excepted,"  and  the  transcript 
contained  what  purported  to  be  instructions,  but  un- 
signed and  not  identified,  it  was  held  that  such  a 
mode  of  i*eferring  to  papers  and  instructions  was  in- 
suflScient.-^  And  so,  where  a  bill  merely  stated  that 
"  exceptions  were  taken  to  the  rulings  of  the  court, 
and  to  its  refusal  of  instructions  to  the  jury  appearing 
in  the  motion  for  a  new  trial,"  it  was  held  that  the 
appellate  court  could  not  go  to  the  motion  for  a  new 
trial  in  quest  of  the  information  which  ought  to  have 
been  afforded  by  the  bill  of  exceptions.-^  And  the 
words  "  The  court  charged  the  jury  on  questions  of 
fact "  have  been  held  unavailable,^"  since  the  appellate 
court  will  not  search  for  error,  but  only  act  on  errors 
specificaily  presented.^^ 

§  721.  And,  in  Alabama,  it  has  been  held  that  a 
recital  in  a  bill  of  exceptions  that  "the  court  decided  " 

^  Zipper  V.    Commonwealth,  ^5  Harmon    v.    Chandler,     3 

IMct.  (Ky.)6.  Clarke,  150. 

23  Ingram  v.  Smith,  1  Head  26  gj.g^jjjg^Qjj  ^^  Patton,  1 
(Term  j^418.  Clarke,  121. 

24  Freher  v.  Geeseka,  5  Clarke  ^  Sands  v.  Woods,  ibid.  263. 
(Iowa)  472. 


5G4  BILLS    OF    EXCEPTIOlSr.  [Part  III. 

certain  legal  propositions,  is  insufficient  to  show  that 
such  decisions  were  given  to  the  jury  as  instructions.'^^ 

But  it  is  not  material  that  a  decision  be  set  forth  in 
its  precise  language,  so  the  meaning  remains  unim- 
paired by  the  different  phraseology,"''  and  tlie  error  be 
plainly  and  distinctly  set  out,''^°  and  each  ruling  ob- 
jected to  particularly  specified.'^^ 

§  722.  Where  a  deed  was  offered  and  ruled  out, 
and  the  bill  of  exceptions  did  not  show  that  it  was  a 
tax  deed,  the  bill  was  held  unavailable.^^ 

And  where  a  very  voluminous  charge  was  given, 
and  defendant  excepted  generally,  and  also  excepted 
to  the  "  rejection  of  the  instructions  asked  for  by  de- 
fendant, to  all  that  part  of  the  charge  wherein  the  in- 
structions given  at  the  request  of  the  defendant  were 
in  any  wise  qualified,  or  against  the  defendant  to  all 
that  part  wherein  the  court  commented  on  the  evi- 
dence, and  to  all  the  remarks  to  the  jury  not  relating 
to  points  raised  or  to  the  merits  of  the  case,"  it  was 
held  that  the  exceptions  raised  no  point  except  as  to 
the  instructions  asked  by  the  defendant,  and  refused.^^ 

28  Cotton  V.  Bradley,  38  Ala.  3i  Case  v.  Fogg,  46  Mo.  47. 
506.                                                            ^-  Zimmerman   v.   Turner,  22 

29  Spauldiug    V.    Sprang,    38     Wis,  371. 

N.  Y.  16.  33  Strohn   v.  K.  R.   23  Wis. 

30  Taylor  i;.Flint,  35  Ga.  124  ;     126. 
Burleson  v.   Hancock,  28  Tex. 

81. 


Chap.  VIII.]  OTHER   REQUISITES.  565 

CHAPTER   Tin. 

Other  Requisites. 

§  723.  Bills  of  exception  must  not  be  frivolous,^ 
and  such  are  sometimes  punished  with  double  costs.^ 
As  where  there  is  an  exception  to  that  which  is  no 
ground  of  exception.^ 

!N^or  relate  to  immaterial  issues  or  instructions.* 

§  724.  Bills  must  not  be  premature;  as,  for  in- 
stance, exceptions  to  interlocutory  or  prehminary 
decisions  brought  before  the  appellate  court  before 
the  final  disposition  of  the  case.^  Thus  an  exception 
to  sustaining  a  demurrer  to  a  plea,^  or  overruling  a 
demurrer  to  an  indictment,'  cannot  be  brought  up 
until  final  judgment  thereon,  and  a  disposal  of  the 
case,  although  a  demurrer  sometimes  may  end  the 
case  if  the  party  elects  to  abide  by  it.  So  where  an 
order  allowing  a  supplemental  answer  is  excepted  to.^ 

§  725.  An  assignment  of  errors  cannot  enlarge  a 
bill  of  exceptions,  but  must  be  thereby  supported.^ 
And  where  exceptions  are  taken  only  to  the  conclu- 

1  Gen.  Eule,  3  Cow.  (N.  Y.)  ^  Daggett  v.  Chase,  29  Me. 
439.  356. 

2  Williams  v.  Greene,  2  Cash.  ^  Commonwealth  v.  Sallen,  II 
(Mass.)  466.  Gray,  52. 

^  Mansfield  v.  Corbin,  4  Cush.  "*  Commonwealth  v.Paulus,  11 

213.  Gray,  305. 

4  Vennard   v.   McConnell,   11  ^  jyjai-sijaii  v.  Merritt,  13   Al- 

Allen,    562  ;  Commonwealth   v.  len,  214. 
Bailey,  11  Cush.  416.  ^  Smith  v.  Mitchell,  6  Ga.  457 


56(j  BILLS    or    EXCEPTION.  [Part  III. 

sions  of  law  in  a  case  tried  by  the  court  without  a 
jury,  the  findings  of  fact  are  not  reviewable."^ 

§  726.  Where  blanlfs  are  left  in  a  bill  which  are  not 
filled  up  by  the  documents  intended,  and  these  docu- 
ments are  not  referred  to  so  as  to  identify  them,  it  is 
a  fatal  irregularity.'^  However,  if  a  bill  is  imperfectly 
drawn,  but  yet  the  points  are  ascertainable  thereby, 
the  appellate  court  will  entertain  the  ca'ie.'~  But  a' 
bill  must  set  out  evidence,  and  not  merely  the  sub- 
stance thereof.''^ 

§  727.  If  an  exception  alleged  does  not  state  the 
ruling  excepted  to,  and  the  evidence  to  which  it  is 
applied,  with  substantial  accuracy,  so  as  to  present  the 
same  question,  and  in  the  same  aspect,  to  the  appel- 
late court  as  to  the  court  below,  the  exception  cannot 
be  entertained,  either  in  the  form  in  which  it  was,  or 
in  that  in  which  it  appears  that  it  should  have  been 
tendered  to  the  presiding  judge.'* 

§  728.  If,  after  verdict  for  a  plaintiff,  the  defendant 
dies,  the  court  may  pass  upon  the  exceptions  he  had 
alleged;  and,  if  just,  to  enter  judgment  nunc  'pro 
tunCy  as  of  the  term  when  the  verdict  was  rendered, 
although  no  administrator  had  been  appointed  in  the 
state  —  so  held  in  Massachusetts.'^ 

i*^  Brant  v.  Salisbury,  23  Wis.  i3  Bi^^^kenship  v.    E.     R.   48 

515.  Mo.  376. 

"  Sexton  V.  Willard,  27  Wis.  ^*  Sawyer  v.  Iron  Works,  116 

468.  Mass.  424. 

12  U.  S.  V.  Morgan,  11  How-  ^^  Tapley  v.  Martin,  116  Mass. 

ard,  154.  275. 


Chap.  IX.]        DISCRETIONARY   MATTERS,  ETC.  567 

CHAPTER  IX. 

Discretionary  Matters  not  exceptionable. 

§  729.  It  is  well  settled  that  a  proper  exercise  of 
judicial  discretion  is  not  reviewable  in  an  appellate 
court,  even  though  there  may  have  been  a  mistake 
committed  therein,'  provided  the  discretion  has  not 
been  or  cannot  be  reduced  to  rule.~ 

§  730.  Thus  in  regard  to  motions ;  as,  for  example, 
motions  to  dismiss,  where  a  court  has  authority  to 
entertain  the  suggestion  of  a  fraudulent  abuse  of  the 
process  of  the  court  upon  a  summary  motion  to  dis- 
miss, without  putting  the  defendants  to  plead,  and  try 
it  in  regular  form,  it  may,  on  discretion,  decline  so  to 
do.'  It  is  held,  in  Khode  Island,  that  "  the  power  in- 
cident to  every  court  to  regulate  all  proceedings  in  it, 
and  the  conduct  of  all  suitors  and  officers,  which 
makes  it  a  duty  to  see  that  those  proceedings  and  that 
conduct  are  in  good  faith,  and  that  its  forms  of  pro- 
ceeding are  not  used  in  bad  faith  and  as  a  cloak  for 
any  fraudulent  or  illegal  purpose,  is  broad  enough  to 
warrant  a  dismissal  of  a  suit,  not  merely  upon  the 
motion  of  the  other  party,  but  upon  the  mere  motion 
of  the  court  itself.  In  every  case,  therefore,  where  it 
appears  to  the  court  that  the  party  is  conducting  in 

^  Masseaux  v.  Brigham,  19  ^  Crosby  v.  Harrison,  116 
Vt.  460.  Mass.  117. 

2  Thayor  v.  Elliott,  16  N.  H. 
103. 


568  BILLS    OF   EXOEPTION^.  [Part  IIL 

bad  faith  towards  the  court  itself  by  attempting, 
under  the  forms  of  law,  to  impose  upon  it  a  jurisdic- 
tion which  the  court  is  prohibited  from  exercising,  it 
may  properly,  and  as  a  just  punishment  for  such  at- 
tempt, dismiss  the  party.  But,  at  the  same  time, 
though  the  court  may  dismiss,  it  is  a  matter  in  its  dis- 
cretion depending  on  the  circumstances  in  each  case> 
and  upon  the  facts  as  they  appear,  the  court  must 
necessarily  be  the  sole  judge.  This  is  not  a  matter 
that  can  properly  be  reviewed."  * 

"Where  the  declaration  shows  an  amount  necessary  to 
give  jurisdiction  to  a  court,  but  it  afterwards  appears 
by  the  evidence  that  the  amount  was  so  stated  in  order 
to  give  jurisdiction  to  the  court,  and  was  fraudulent 
by  stating  more  than  the  plaintiff  had  any  expectation 
of  recovering,  it  is  in  the  discretion  of  the  court  to 
dismiss  the  cause  for  want  of  jurisdiction.  But  where 
suit  is  brought  on  a  specific  sum,  as  a  note  or  penalty, 
where  the  jurisdiction  is  apparent  on  inspection, 
whereby  it  appears  that  the  sum  is  too  small  to  give 
jurisdiction,  the  court  has  no  discretion,  but  is  bound 
to  dismiss.^ 

A  refusal  to  dismiss  a  replevin  suit  because  of 
erasures  and  interlineations  in  the  bond,  is  not  excep- 
tionable, this  being  a  matter  of  fact  to  be  determined 
by  the  judge,  whether  the  interlineations  or  erasures 
were  made  before  it  was  executed.® 

Where  an  order  is  entered  dismissing  a  case,  and  a 

*  Edwards  v.  Hopkins,  5  R.I.  ^  Memsir  v.  Crosby,  6  Gray, 
143.  335. 

^  JIcGrayv.  Wheeler,  18  Vt. 
503 


Chap.  IX.]        DISCKETIOJ^ART   MATTERS,  ETC.  569 

motion  is  made  to  strike  out  the  entry  from  the 
docket,  it  is  held  not  reviewable  accordingly,  in  Mas- 
sachusetts, this  being  in  effect  a  motion  for  a  new 
hearing/ 

In  general,  entries  on  a  docket,  by  consent  of  par- 
ties, under  the  direction  of  the  court,  merely  to  facili- 
tate business,  such  as  the  entries  "to  become  nonsuit," 
*Ho  be  defaulted,"  "to  continue,"  "to  await,"  "to 
abide,"  &;c.,  are  wholly  discretionary ;  and  where  they 
are  stricken  off  on  motion,  the  action  of  the  court 
cannot  be  reviewed.^ 

So  motions  to  quash  an  indictment  are  addressed 
to  the  discretion  of  the  court,  which  may  quash,  or 
otherwise  require  the  accused  to  plead  or  demur,  but 
is  not  bound,  ex  debito  justitice,  to  dispose  summarily 
of  the  prosecution  on  such  a  motion/  And  it  is  thus 
even  when  the  motion  is  made  on  the  ground  that  the 
grand  jury  who  found  the  indictment  was  illegally 
drawn. '° 

And  so  a  refusal  to  order  a  nonsuit  is  not  review- 
able, being  discretionary." 

And,  in  a  criminal  case,  a  court  may,  in  its  discre- 
tion, refuse  to  allow  a  prisoner  to  withdraw  a  plea  of 
not  guilty,  and  file  a  special  plea  instead.'^ 

§  731.  A  refusal  to  compel  a  plaintiff  to  elect  on 
which  count  he  will  proceed,  is  addressed  to  the  dis- 
cretion of  the  court,  and  not  a  subject  of  exception.^^ 

7  Horton  v.  Wead,    9  Allen,  ^^  Priest  v.  Wheeler, 101  Mass. 

538.  479. 

s  Bank  v.  Stevens,  39  Me. 537.  ^^  CoQ^moQ^galth    v.    Blake, 

9  State  V.  Barnes,  29  Me.  563.  12  Allen,  189. 

10  State  V.  Maher,  49  Me.  569.         ^^  Carlton  v.  Pierce,  1  Allen, 

28. 


570  BILLS    OY   EXCEPTIOIT.  [Part  III. 

And  so  with  regard  to  the  decision  on  a  demurrer 
to  a  plea  of  abatement.^* 

§  732.  "No  exception  Ues  to  the  refusal  of  a  judge 
to  allow  separate  trials  to  defendants  jointly  indicted, 
although,  by  trying  them  together,  some  of  them  are 
prevented  from  introducing  evidence  which  would  be 
admissible  in  their  behalf  if  tried  separately.^^ 

§  733.  The  admission  of  parties  into  a  suit  in  par- 
tition is  a  matter  of  discretion  with  the  court. '^ 

§  734.  In  some  states,  a  refusal  to  grant  a  contin- 
uance is  held  not  reviewable ;  ^^  as,  for  instance,  to 
allow  an  officer  to  amend  his  return;  ^^  or  to  obtain  a 
record  of  conviction  to  show  the  incompetency  of  a 
witness  by  reason  of  infamy. ^^ 

§  735.  In  allowing  or  refusing  amendments  where 
the  statute  does  not  expressly  grant  and  define  the 
right,  the  rulings  of  the  court  are  held  discretionary. 
As  in  disregarding  a  variance  as  amendable;^*'  or 
allowing  the  amendment  of  a  complaint.^'  To  except 
to  refusals,  the  party  must  show  an  unquestionable 
right  under  the  law  to  amend.^^  And  where  a  motion 
made  for  the  amendment  of  the  declaration  by  adding 
a  new  count  was  refused,  it  was  held  that  the  plaintiff 
had  no  ground  of  exception,  but,  even  had  it  been 

1*  Eichmond  v.  Whittlesey,  2  ^^  State  v.   Damery,   48  Me. 

Allen,  233.  327. 

^^  Commonwealth    v.   Eobin-  ^o  Conover  v.  Insurance  Co.  3 

son,  1  Gray,  555.  Denio  (N.  Y.)255. 

^^  Huntress  v.  Tiney,  46  Me.  ^^  Binnard  v.  Spring,  42  Barb. 

90.  412. 

17  People  V.  Colt,  3  Bill,  432;  22  ^^^^  ^_  Schloss,  6  Barb. 
Monk  V.  Beal,  2  Allen,  585.  310. 

18  Pickering  v.  Reynolds,  111 
Mass.  83. 


Chap.  IX.]        DISCEETION^AEY  MATTERS,  ETC.  571 

wi'ong,  held  that  it  was  discretionary  in  the  case,  and 
so  not  reviewable.^'^  And  where  a  case  was  on  trial 
for  the  third  time,  it  was  held  that  it  was  discretionary 
with  the  court  to  allow  amendment  while  the  trial 
was  progressing,  unless  in  a  case  where  the  discretion 
itself  is  improperly  exercised.^^ 

The  refusal  of  a  judge  to  allow  a  defendant  who  has 
pleaded  nul  disseisin  and  payment,  to  a  writ  of  entry 
to  foreclose  a  mortgage,  to  amend  at  the  trial  by  a 
disclaimer,  is  held  not  reviewable  in  Massachusetts.^ 
And  so,  in  regard  to  striking  out  an  item  of  debt  or 
credit  in  a  bill  of  particulars,'^^  or  in  an  action  of  tres- 
pass in  regard  to  an  amendment  describing  the  close, 
and  inserting  a  venue." 

§  736.  No  exception  lies  to  the  refusal  of  a  judge 
to  order  a  specification  of  the  encumbrances  forming 
the  basis  of  an  action  upon  the  covenants  of  a  deed, 
this  being  entirely  discretionary.^^  And  on  the  other 
hand,  the  court  may,  in  its  discretion,  require  a  party 
adducing  a  deed  in  evidence  to  introduce  with  it  a 
plan  therein  referred  to.^^ 

§  737.  In  Maine,  the  direction  of  juries  has  been 
held  at  least  largely  discretionary.  And  the  court 
said,  in  an  early  case,  "It  is  the  right  and  duty  of 
a  judge  to  superintend  and  direct  as  to  the  course 
of  proceedings;   to   decide   which  jury   shall   try  a 

2^  Looney  v.Looney,116  Mass.         2''  Moodey  v.  Hinkley,  34  Me. 

286.  200. 

2*  Volte  V-  Newbery,  17  Ind.         ^8  Blake   v.  Everett,  1  Allen, 

189.  248. 

^  Iron  Works    v.  Woodruff,         ^  Bennett    v.    Clemence,    6 

8  Gray,  447.  Allen,  10. 

2^  Bruce    v.     Fairbanks,     12 
Cush.  273. 


572  BILLS    or   EXCEPTION^.  [Part  III. 

particular  cause,  or  discharge  them,  at  his  pleasure, 
when  they  cannot  agree;  to  make  all  requisite  ar- 
rangements, according  to  his  sound  discretion;  to 
excuse  jurors  when  he  thinks  proper,  or  call  a  juror 
from  one  jury  to  another.  It  belongs  to  him,  in  his 
discretion,  to  do  all  these  things,  and  we  are  by  no 
means  certain  that  such  an  order  or  proceeding  as 
forms  the  ground  of  this  objection  is  a  proper  subject 
of  exception,  and  open  to  revision  and  correction  by 
the  whole  court.  At  least,  these  seem  to  be  rather 
matters  of  judicial  discretion  than  matters  of  law."  ^ 

§  738.  It  is  a  matter  of  discretion  with  the  court  to 
receive  or  reject  a  plea  puis  darrein  continuance, 
which  alleges  matters  that  arose  before  the  last  con- 
tinuance.^' 

§  739.  The  order  of  admitting  evidence  is  within 
the  discretion  of  the  court,  and  if  evidence  is  admitted 
requiring  further  evidence  to  make  it  competent,  this 
cannot  be  objected  to,  unless  it  appears  that  the  other 
evidence  was  not  introduced  afterwards. ^^  And  so 
the  order  in  which  witnesses  are  to  be  examined,  and 
the  number  a  party  may  call  to  a  single  point,  are 
wholly  discretionary ."^'^ 

§  740.  Cross-examination  is  largely  under  the  dis- 
cretion and  control  of  the  court  as  to  its  extent,  as 
also  re-examination.^*  And  cross-examination  may 
be  restrained  wholly  as  to  immaterial  matters,''^  and 

30  Ware  v.  Ware,  8  Greenl.  ^^  Gushing  v.  Billings,  2 
(Me.)  52.  Gush.  158. 

31  Gunimings  v.  Smith,  50  ^  Kendall  f.  Weaver,  1  Allen, 
Me.  568.  2'77. 

32  Wharf  Co.  V.  Prescott,  4  35  Hutchinson  v.  Inhab.  &c. 
A-llen,  23.  1  Allen,  33. 


CiiAP.  IX.]        DISCRETIONARY   MATTERS,  ETC.  573 

closely  limited  on  collateral  matters  having  no  direct 
bearing  upon  the  issue;  as,  for  example,  the  degrada- 
tion of  a  witness.^^ 

§  741.  Where  it  is  desired  to  recall  a  witness  to 
give  him  an  opportunity  to  testify  to  a  fact  which  he 
had  intended  to  state  in  the  first  place,  it  is  held,  in 
IS'ew  York,  to  be  within  the  discretion  of  the  court  to 
allow  it  or  not.^^ 

And  so,  after  a  case  is  closed,  whether  any  more 
evidence  shall  be  introduced,  is  entirely  subject  to 
the  discretion  of  the  court,^^  and  that  even  before  the 
argument  has  commenced.'^^  And  so,  after  the  defend- 
ant's evidence  is  closed,  a  court  may,  in  its  discretion, 
admit  evidence  which  does  not  tend  to  rebuttal,  and 
this  is  not  subject  to  review.''"  And  even  after  the 
commencement  of  the  plaintiff's  closing  argument,  a 
defendant  may  be  permitted  to  introduce  evidence  to 
explain  entries,  then  first  pointed  out  by  the  plaintiff, 
in  books  previously  put  into  the  case  by  the  defend- 
ant.^^ But  it  may  be  rejected  as  well  as  admitted,  and 
the  rejection  will  not  be  reviewed,*^  and  even  in  a 
capital  case.^"* 

§  742.  In  Massachusetts,  it  is  held  that  no  excep- 
tion lies  to  the  decision  of  a  judge  of  the  Superior 
Court,  as  to  whether  the  jury  shall  be  allowed  to  take 
a  deposition  with  them,  when  they  retire  to  make  up 

36  Commonwealth  v.  Savory,  ^'^  Ray  t?.  Smith,  9  Cush.  141. 

10  Cush.  537.  ^1  Smith  v.  MeniU,  9   Cush. 

3"  Law  V.  Merrills,    6  Wend.  144. 

216.  ^^  Marble  v.  Keyes,  9  Cush. 

38  Welsh    V.  People,    11  111.  222. 

339.  ^^  Commonwealth  v.  Downer, 

39  Reed  V.Anderson,  12  Cush.     4  Allen,  297. 
481. 


574  BILLS   OF   EXCEPTION.  [Part  IIL 

their  verdict/*  or  other  papers  or  documents  in  evi- 
denced^ 

§  743.  Where  a  plaintiff  has  put  in  an  auditor's 
report  in  his  favor,  and  rested  his  case,  it  is  for  the 
court  to  determine  at  discretion  whether  he  shall  be 
allov/ed,  at  the  close  of  defendant's  evidence,  to  put 
in  additional  testimony  in  support  of  it.*"  And  how 
man}^  times  a  question  may  be  repeated  on  cross-ex- 
amination, and  how  far  the  witness  shall  be  compelled 
to  answer,  are  discretionary  matters.*^  And  so  of 
matters  in  rebuttal,  to  corroborate  the  plaintiff's  tes- 
timony.'''' 

§  744.  Where  a  plaintiff  has  put  in  an  auditor's 
report  as  evidence,  and  the  defendant  objects  to  it, 
the  plaintiff  may  be  allowed  to  withdraw  the  report 
from  the  consideration  of  the  jury.*'' 

§  745.  It  is  in  the  discretion  of  the  court  to  refuse 
permission  to  the  defendant  in  opening  his  case  to 
comment  on  the  plaintiff's  evidence  already  intro- 
duced.^^ 

§  746.  Where,  in  a  criminal  prosecution,  the  de- 
fendant examined  a  letter,  which  the  district  attorney 
offered  to  read  in  evidence,  and  said  he  had  no  objec- 
tion to  its  being  read,  but,  after  the  district  attorney 
began  to  read  it,  he  objected  to  its  admission,  the 
judge  refused  to  stop  the  reading.     And  it  was  held 

^  Whitehead  v.  Keyes,  3  Al-  ^8  Huntsman  v.  Nichols,   116 

len,  495.  Mass.  521. 

45  Burg:hardt  v.  Van  Deusen,  *^  Ilaj'es  v.  Kelley,  116  Mass. 

4  Allen,  378.  300. 

^  Lowe  I'.Pimental, 115  Mass.  ^'^  Rich    v.   Jones,    9    Cush. 

44.  336. 

4"  Demerritt  v.  Randall,    116 
Mass.  331. 


Chap.  IX.]         DISCRETIOXAEY   MATTERS,  ETC.  575 

by  the  afipellate  court  that  this  matter  was  purely  dis- 
cretionary, and  not  subject  to  exception.^^ 

§  747.  The  question  whether  an  auditor's  report 
shall  be  recommitted,  or  not,  is  likewise  a  matter  of 
discretion.''- 

§  748.  And  in  a  criminal  case,  it  is  held  no  ground 
of  exception  to  refuse  to  allow  the  defendant's  counsel 
to  read  to  the  jury  the  whole  of  the  statute,  upon  one 
section  of  which  the  prosecution  is  based,  if  he  is 
allowed  to  read  all  those  parts  which  he  contends 
affect  the  construction  of  that  section,  and  to  com- 
ment before  the  jury  upon  the  whole  statute.^^ 

§  749.  On  the  trial  of  an  action  brought  against  an 
officer  by  the  owner  of  a  horse  and  wagon,  for  seizing 
them  while  employed  in  the  illegal  transportation  of 
intoxicating  liquors,  it  was  held  the  plaintiff  could  not 
except  to  a  comparison  by  the  judge  in  the  way  of 
illustration  of  the  rights  of  the  defendant  in  this  case 
to  those  of  an  officer  seizing  a  horse  and  wagon 
employed  in  a  burglary.^* 

And  the  allowance  of  an  improper  and  irrelevant 
course  of  argument  by  counsel  is  no  ground  of  excep- 
tion, without  showing  that  the  jury  were  erroneously 
instructed  as  to  the  weight  to  be  given  to  it.^^ 

§  750.  It  is  discretionary  with  the  court  to  order 
several  actions,  founded  on  the  same  subject  matter, 
brought  by  the  same  plaintiff  against  several  defend- 

^^  Commonw.   v.  Marks,  101  ^  Jones    v.    Root,    6    Gray, 

Mass.  31.  435. 

^2  Kendall   v.  Weaver,  1    Al-  ^  Commonw.  y.Byce,  8  Gray, 

Icn,  278.  461. 

^^  Commonw.    v.    Austin,    7 
Gray,  51. 


576  BILLS    OP    EXCEPTION".  [Pap.t  III. 

ants,  to  be  consolidated  or  tried  together,  even  though 
the  defendants  employ  different  counsel,  and  the  evi- 
dence in  the  several  cases  is  different.^^ 

§  751.  Wliere  the  court  refuses  to  return  the  jury- 
to  their  room  to  find  specifically  upon  certain  ques- 
tions on  which  they  had  failed,  and  signified  their  in- 
ability to  answer,  it  is  not  exceptionable,  unless  there 
has  been  a  clear  abuse  of  the  discretion  exercised 
thereon. ^^ 

It  is  also  discretionary  for  the  court  to  recall  a  jury 
after  they  have  retired,  and  re-state  the  law  and  evi- 
dence to  them,  although  the  jury,  when  asked  if  they 
desired  any  instructions  on  the  law,  replied  in  the 
negative.^^ 

On  the  other  hand,  a  judge  may  refuse  to  repeat 
instructions  given  before  the  jury  retired,  after  he  has 
answered  a  question  put  by  the  jury,  who  had  come 
in  for  further  instructions.^^ 

And  it  is  within  discretion  for  the  judge  to  refuse 
to  ask  the  jury  as  to  the  ground  of  their  verdict,  un- 
less such  refusal  would  violate  some  rule  of  law  or 
established  practice."" 

§  752.  Granting  a  review  is  matter  of  discretion  at 
nisi  2>^ius,^^  where  there  is  no  opinion,  direction,  or 
judgment  expressed  in  matters  of  law."-  If  the  court 
is  of  opinion  that  the  petitioner  for  a  review  has  a 

^  City  of  Springfield  v.  Sleep-  ^o  "Woollen  Co.  v.  Goodrich,  6 

er,  &c.  115  Mass.  587.  Allen,  201. 

57  Greenleaf  v.  R.  R.  Co.  29  ^i  r,  r^  j,.  ciark,  45  Me. 
Iowa,  14.  152. 

58  Nichols  V.  Munsel,  115  ^^  gcruton  v.  Moulton,  45  Me. 
Mass.  667.  418. 

59  Nelson  v.  Dodge,  116  Mass. 
368. 


Chap.  IX.  ]        DISCEETI0:N'ART   MATTERS,  ETC.  tJTT 

substantial  defence  to  the  action  upon  the  merits, 
which,  by  mistake  or  accident,  and  without  fault  on 
his  part,  he  has  had  no  opportunity  of  making,  it  may 
grant  a  review,  without  passing  in  advance  upon  the 
questions  of  law  or  fact  involved  in  the  trial  of  the 
case,  and  its  action  is  not  open  to  exception/'^ 

§  753.  Giving  a  plaintiff  an  option  to  remit,  in  case 
of  an  excessive  verdict,  is  not  exceptionable/'* 

§  754.  Where  a  county  court  may  grant  a  certifi- 
cate that  the  cause  of  action  arose  from  the  wilful  and 
malicious  act  or  neglect  of  the  defendant,  &q.,  the 
allowance  or  refusal  of  such  a  certificate  is  ordinarily 
a  matter  of  discretion,  and  not  reviewable.^^ 

§  755.  The  apportionment  of  costs  is  subject  to  the 
discretion  of  the  court,  and  will  not  be  reviewed,  un- 
less an  abuse  of  the  discretion  is  afilrmatively  shown.*^ 

§  756.  The  discharge  of  a  prisoner  by  habeas  corpus 
cannot  be  reviewed.^^ 

^3  Boston  City  v.  Robbins,  116  ^^  Bush  v.  Yeoman,  30  Iowa, 

Mass.  313.  419  ;  Harvey  v.  Reeds,  49  N.  H. 

^^  Doyle  V.  Dixon,  97  Mass.  531. 

208.  67  "VVyeth  v.   Richardson,   10 

65  Soule  V.  Austin,  35  Vt.  515.  Gray,  241. 

37 


678  BILLS   OF   EXCEPTION^.  TPart  IIL 

CHAPTER  X. 

Kew  Trials. 

§  757.  I  LNTRODUCE  the  subject  of  new  trials  here, 
not  because  the  rulings  of  an  inferior  court  in  relation 
to  tiiera  are  in  all  cases  held  not  reviewable,  but  that 
these  in  some  courts  are  held  so  to  the  full  extent, 
and  in  others  partially,  as  we  shall  see. 

In  the  United  States  courts,  a  motion  for  a  new 
trial  is  regarded  as  addressed  to  the  discretion  of  the 
court,  so  that  the  decision  of  a  court,  either  in  grant- 
ing or  refusing  it,  is  not  a  proper  subject  of  excep- 
tion.^ In  Michigan,  the  decisions  of  courts  upon 
motions  for  a  new  trial,  in  civil  cases  always,  and  in 
criminal  cases  usually,  are  not  reviewable  in  the  ap- 
pellate court.-  In  Maine,  a  refusal  to  grant  a  new 
trial  is  held  to  be  matter  of  discretion  at  common  law, 
and  not  subject  to  exceptions.^  In  Vermont,  it  is 
held  to  be  also  a  matter  of  discretion,  subject  to  re- 
view only  when  there  is  an  abuse  of  the  discretion, 
the  court  not  keeping  within  the  limits  of  its  author- 
ity ;  ^  so  that,  if  the  court  grants  a  new  trial,  its  de- 
cision upon  the  merits  is  not  subject  to  revision;  yet, 
if  it  grants  a  new  trial  in  a  case  where  it  has  no  legal 

^  Pomeroy's  Lessee  IK  State  ^  Moulton    v.  Jose,    25   Me. 

Bank,  1  Wall,   597,  and  cases  85. 

cited.  *  Houghton  v.  Slack,  10  Vt 

2Jahr    V.  People,  26    Mich.  523. 
431. 


CnAP.  X.]  NEW   TRIALS.  579 

authority  to  do  so,  it  is  error.  On  the  other  hand,  in 
Illinois,  the  granting  of  a  new  trial  is  not  reviewable, 
but  the  overruling  of  a  motion  for  a  new  trial  is  sub- 
ject to  exception.^  In  Massachusetts,  if  a  motion  for 
a  new  trial  rests  upon  new  questions  of  law  arising 
in  the  case,  the  decision  upon  the  motion  may  be 
revised  in  the  appellate  court.  But  if  a  judge  were 
not  asked  to  rule  upon  the  legal  effect  of  the  evi- 
dence at  the  trial,  he  is  not  obliged  to  report  the 
evidence  for  the  purpose  of  raising  such  a  question 
after  verdict;  and  there  is  no  other  legitimate  mode 
in  that  state  in  which  the  evidence  can  be  put  upon 
tlie  record  for  the  consideration  of  the  court.^ 

In  I^ew  York,  a  decision  of  the  Court  of  Oyer  and 
Terminer,  on  a  motion  for  a  new  trial  on  the  ground 
of  insufficient  evidence  or  irregularity,  cannot  be 
reviewed.^ 

§  758.  In  Ohio,  it  is  held  that,  under  the  code,  a 
party  cannot  have  a  new  trial  upon  the  ground  of 
misdirection  or  error  in  law  occurring  during  the  trial, 
unless  the  misdirection  or  error  were  excepted  to 
during  the  term;  so  that,  if  a  motion  for  new  trial 
is  continued,  and  thereupon  no  exception  is  filed  till 
the  next  term,  the  omission  is  fatal  in  the  appellate 
court.® 

In  some  states  a  bill  of  exceptions  is  necessary  to 
bring  the  motion  for  a  new  trial  before  the  appellate 
court  to  review  the  decision  thereon:  indeed,  this  is 

^  Brookbank  V.Smith,  2  Scam.  ^  Hunting  v.  People,  4  Parker, 

78.  331. 

6  Gas  To.   V.   Bean,  1  Allen,         «  Kline  v.  Wynn,  10  Ohio  St 

275.  230.     (Sutliff,  J.,  dissenting.) 


580  SILLS    OF    EXCEPTIOJ^".  [Pakt  III. 

certainly  the  general,  although  not  the  universal,  rule. 
In  Kansas,  when  a  motion  for  a  new  trial  is  filed,  it 
becomes  a  part  of  the  record,  and  it  is  not  necessary 
to  incorporate  it  into  a  bill  of  exceptions." 

In  Vermont,  the  matter  of  a  new  trial,  it  seems,  is 
brought  before  the  Supreme  Court  by  petition,  and 
not  by  exceptions.^'' 

In  Mississippi,  it  seems  to  be  necessary  that  it 
appear  in  the  record  otherwise  than  by  bill  of  excep- 
tions." 

In  Massachusetts,  even  a  bill  of  exceptions  contain- 
ing all  the  evidence  will  not  authorize  the  appellate 
court  to  set  aside  a  verdict  as  against  the  weight  of 
the  evidence.'-  But  in  Illinois,  the  whole  evidence 
must  be  set  out  in  the  bill,  where  there  is  a  refusal  to 
set  aside  a  verdict  because  of  the  insufficiency  of  the 
evidence,  and  then  the  appellate  court  will  review  the 
refusal.^^ 

§  759.  A  motion  for  a  new  trial  must  state  the  rea- 
sons of  the  motion,  so  as  to  bring  the  matter  clearly 
before  the  court  below,  and  a  mere  reference  to  a 
bill  of  exceptions  to  be  made  thereafter  is  not  allow- 
able.'^ 

§  760.  And  so  the  bill  of  exceptions  must  show  the  na- 
ture of  an  objection  made  to  the  admission  of  evidence 
where  a  new  trial  is  sought  on  that  ground.'^     And 

^  McCullaghv.  Allen,  10  Kan.  ^3  Granger  v.  Warrington,    3 

150.  Gil.  310. 

10  Bloss  V.  Kitridge,  5  Vt.  30.  ^^  Shore    v.  Taylor,   46  Ind. 

11  Sherwood  v.  Houston,  41  350  ;  Murphy  v.  Wilson,  46 
Miss.  61.  Ind.  540. 

12  City  of  Boston  v.  Benson,  i^  Cox  v.  Jackson,  6  Allen, 
12  Cush.  62.  109. 


Chap.  X.]  NEW    TRIALS.  581 

the  motion  must  be  preserved  in  the  bill.^''  And  where 
the  motion  was  based  on  the  ground  of  newly-discov- 
ered evidence,  the  evidence  on  which  the  verdict  was 
based,  and  the  new  evidence,  should  both  be  set  out,'^ 
for  otherwise  the  court  could  not  say  but  that  the  new 
evidence  was  merely  cumulative. ^^ 

§  761.  One  making  a  motion  for  a  new  trial  may, 
by  withdrawing  the  motion  and  waiving  his  leave  to 
perfect  and  file  his  bill  of  exceptions,  preclude  him- 
self from  the  right  to  an  appeal  or  an  assignment  of 
errors  on  a  bill  filed  by  a  co-defendant.'^ 

§  762.  In  Massachusetts,  by  statute,  the  court  has 
authority,  in  criminal  cases,  to  grant  a  new  trial  for 
other  sufficient  cause,  shown  after  overruling  the 
exceptions,  or  to  remand  the  cause  for  the  purpose, 
among  others,  of  the  court  below  hearing  a  motion 
for  a  new  trial.^*^ 

§  763.  Where  a  new  trial  has  been  granted  at  law 
in  Mississippi,  in  a  case  where  the  first  verdict  was 
correct,  and  a  bill  of  exceptions  was  taken  to  the 
grant  of  the  new  trial,  and  a  second  trial  is  had,  and 
a  verdict  adverse  to  the  first  is  rendered,  the  appellate 
court  will  exercise  the  authority  to  set  aside  the  sec- 
ond verdict,  and  uphold  the  first.^^ 

§  764.  A  singular  point  arose  in  an  important  libel 
case,  in  J^ew  York,  where  objection  was  made  to  the 
re-trial  of  the  cause  before  the  same  judge  who  tried 

1*^  Watson  V.  Pierce,  11   Mo,  ^^  Makepeace  v.  Davis,  27  Ind. 

358.  353. 

i*"  Sanders    v.  Lay,   45   Ind.  ^^  Commonw.  v.  Peck,  2  Met. 

229.  428. 

18  Clark  V.  Hall,  10  Kan,  80.  21  Moore  v.  Ayres,  5  S.  «&  M. 

310. 


582  BILLS    OF   EXCEPTIOJJ^.  [Pakt  III. 

it  before  with  a  jury.     On  exception,  the  objection 
was  held  untenable.-^ 

§  765.  In  Missouri,  the  court  will  not  review  a  de- 
cision below,  refusing  a  motion  for  a  new  trial,  based 
on  the  ground  that  the  verdict  is  against  the  weight 
of  the  evidence .^^  And  it  is  doubtless  a  general  rule 
in  all  the  states  that  a  verdict  will  only  be  set  aside 
on  such  a  ground  when  it  is  very  clearly  tenable 
thereon.-* 


CHAPTEE  XI. 

Incidental  Matters  which  are  not  Excep- 
tionable. 

§  766.  We  have  already  seen  that  matters  purely 
discretionary  with  the  court  are  not  subject  to  excep- 
tions. There  is  also  a  considerable  range  of  pro- 
ceedings which  are  regarded  as  not  reviewable,  in 
part  upon  the  ground  of  discretion,  and  in  part  upon 
other  grounds,  sometimes  not  clearly  definable. 

It  is  a  general  rule  that  there  must  be  some  inter- 
vening action  of  the  court  below,  so  that,  where  there 
has  been  no  ruling  at  all,  or  none  which  became  opera- 
tive in  the  case  at  bar,  there  is  generally  no  basis  for 
the  action  of  the  appellate  court.  So,  where  a  juror 
called  the  attention  of  the  court  to  the  fact  that  the 
defendant  was  shaking  his  head  at  the  witnesses,  and 

22  fij.y  y  Bennett,  o  Bosw.  Mo.  .340,  and  Jones  v.  Plummer, 
200.  ibid.  456. 

23  Irvin  V.  Riddlesburgher,  29         24  Kimball  y.Gearhart,  12  Cal. 

■27. 


Chap.  XI]  INCIDENTAL    MATTERS,  ETC.  583 

asked  if  such  conduct  was  proper  and  allowable,  and 
afterwards,  in  the  same  case,  the  sheriff  slipped  blank 
forms  of  verdict  under  the  door  of  the  jury-room 
while  the  jury  were  in  consultation,  it  was  held  that 
the  appellate  court  could  not  pass  upon  such  irreg- 
ularities, presented  merely  by  a  bill  of  exceptions, 
reciting  the  acts,  but  not  showing  that  any  ruling  of 
the  court  was  asked  for  or  had  thereupon.^  And 
where,  on  appeal  to  the  court  below,  the  plaintiff 
entered  a  motion  that  the  defendant's  surety  on  the 
appeal  bond  be  required  to  justify,  or  that  the  de- 
fendant be  required  to  furnish  another  surety,  and 
the  judge  replied  he  would  sustain  the  motion  if  the 
plaintiff  would  make  aflSdavit  to  the  insufficiency  of 
the  surety,  whereupon  the  defendant  excepted,  and 
then  gave  another  surety,  the  one  on  the  bond  not 
being  in  attendance,  it  was  held  there  was  no  opera- 
tive ruling  or  order  in  the  case  to  which  an  exception 
could  apply." 

§  767.  And  so  a  harmless  ruling,  —  one  exercising 
no  prejudice  as  to  the  final  result,  —  even  though 
it  may  be  erroneous,  is  not  exceptionable.  Thus, 
where  a  judge  refused  to  instruct  a  jury  in  a  criminal 
case  that  the  defendants  could  not  be  convicted  on  a 
certain  count  in  the  indictment,  in  consequence  of  the 
omission  therein  of  their  addition  and  residence,  it 
was  held  that  exceptions  to  the  refusal  must  be  over- 
ruled, it  not  appearing  that  the  defendants  were  in- 
jured thereby.^     And  where,  during  the  progress  of 

^  People  V.   Torres,    38    Cal.  ^  State  v.  Mayberry,  48  Me. 

142.  '  219. 

2  Finley  v.  Quirk,  9  Min.  198. 


584  BELLS    OF   EXCEPTION.  [Part  III. 

a  trial,  the  judge  stated  a  proposition  as  a  rule  of  law 
in  regard  to  the  admissibility  of  evidence,  it  was  held, 
though  erroneous,  to  be  no  ground  for  exception, 
unless  it  appears  that  the  party  was  prejudiced  by  it.* 

And  the  rule  applies  also  where  a  ruling,  though 
material  when  made,  becomes  immaterial  by  the  issue ; 
as,  in  an  action  of  trover,  the  judge  refuses  to  instruct 
the  jury  that  they  are  authorized  (if  they  so  find)  to 
return  a  verdict  against  some  of  several  defendants, 
and  in  favor  of  the  others,  but  the  jury  finds  that  there 
was  no  conversion  by  any  of  the  defendants;'^  or 
where  it  is  apparent  that  certain  evidence  introduced 
under  objection  had  no  effect  upon  the  verdict.^ 

§  768.  In  Georgia,  it  is  held  that  an  order  of  the 
judge  of  the  Superior  Court,  directing  process  for 
the  seizure  of  property  claimed  to  be  subject  to  a 
lien  under  the  "  steamboat  law,"  is  not  such  a  judg- 
ment or  decision  as  may  be  brought  to  the  appellate 
court  by  a  bill  of  exceptions,  it  being  merely  a  minis- 
terial act  in  commencement  of  a  suit,  like  the  issuing 
of  a  writ  of  attachment.'' 

§  769.  Wliere  an  action  is  prematurely  brought,  it 
may  be  peremptorily  dismissed,  and  no  exception  will 
lie  to  the  action  of  the  court;  as,  for  example,  where 
a  tenant  at  will  was  notified  to  quit  on  or  before  a 
certain  day,  and  on  that  very  day  an  action  was 
brought  to  recover  possession.^ 

4  Church  V.  Rowell,  49  Me.  ">  Bower  v.  Cook,  39  Ga. 
367.  28. 

5  Powers  V.  Sawyer,  46  Me,  °  Decker  v.  McManus,  101 
160.  Mass.  63. 

6  Slack  V   Town  of  Norwich, 
32  Vt.  819. 


Chap.  XI.]  INCIDENTAL   MATTERS,  ETC.  585 

§  770.  Where  the  competency  of  a  witness  depends 
upon  the  finding  of  a  preliminary  question  of  fact  by 
the  judge,  his  decision  thereon  cannot  be  reviewed  in 
Massachusetts.^  And  where  evidence  is  conflicting, 
a  court  may  properly  refuse  to  give  an  instruction 
based  on  the  assumption  of  the  credibility  of  a  par- 
ticular witness. ^° 

§  771.  In  a  joint  action,  a  dismissal  of  the  suit  as 
to  part  of  the  defendants,  without  a  finding  on  the 
issues  as  to  them,  while  there  is  a  verdict  against  the 
remaining  defendants,  —  all  being  sued  as  principals 
in  an  unlawful  transaction,  —  is  no  ground  of  excep- 
tion; the  dismissal  not  being  injurious  to  those  not 
included  in  the  verdict,  and  the  others  being  liable 
severally  as  well  as  jointly  therein. ^^ 

§  772.  A  statement  of  the  reasons  for  a  ruling  is 
no  subject  of  exceptions,  such  a  statement  being 
wholly  discretionary  with  the  court.^'^ 

§  773.  In  a  criminal  case,  it  is  not  necessary  that 
the  record  states  in  direct  terms  that  the  prisoner  was 
personally  present  at  the  time  of  the  rendition  of  the 
verdict,  and  during  all  the  previous  proceedings  of 
the  trial,  although  such  presence  is  necessary.  It  is 
sufficient  for  the  record  to  show  that  he  was  present 
at  the  arraignment,  and  also  present  to  receive  his 
sentence. ^^ 

§  774.   And,  after  a  plea  in  abatement  to  an  indict- 

s  O'Connor  v.  Hallinam,  103  ^  Smith  v.  Coe,  1    Sweeney 

Mass.  519.  (N.  Y.)  386. 

^^  Coombs  V.  Cordage  Co.  102  ^^  Jeffries  v.   Commouw.    12 

Mass.  600.  Allen,  154. 

^1  Mead  v.  McGraw,  19  Ohio 
St.  66. 


586  BILLS    OF   EXCEPTION".  [Part  III. 

ment  for  misnomer  in  omitting  one  of  the  defendant's 
three  Christian  names,  and  upon  issue  joined  on  a 
rephcation  that  the  defendant  was  as  well  known  by 
the  name  stated  in  the  indictment  as  by  the  whole 
name  set  forth  in  the  plea,  evidence  of  a  i-ecord  of  the 
defendant's  name  is  irrelevant,  and  its  rejection,  when 
offered  by  him,  is  no  ground  of  exception.  But  the 
prosecution  may  prove  that  he  has  been  called  in  his 
absence  by  the  name  given  him  in  the  indictment,  and 
in  his  presence  by  abbreviations  thereof  and  by  his 
surname.  In  a  case  of  this  kind  the  court  said,  "  The 
question  whether  a  person  is  as  well  known  by  one 
name  as  another  is  a  question  of  reputation,  of  custom 
and  usage,  and  not  to  be  determined  by  records,  nor 
limited  to  names  used  in  his  presence.  The  evidence 
of  the  abbreviated  or  familiar  names  by  which  he  was 
addressed  was  either  corroborative  or  immaterial,  and 
its  admission  affords  no  ground  of  exception."  '"* 

And  if  a  prisoner,  on  his  trial,  submits  to  the  court 
the  question  whether  a  name  proved  is  idem  sonans 
with  that  in  the  indictment,  and  does  not  ask  to  have 
this  question  submitted  to  the  jury,  and  it  does  not 
appear  how  the  two  names  were  pronounced,  the  ap- 
pellate court  cannot  revise  the  decision  of  the  court 
below;  for  said  the  court  in  such  a  case,  "The  ques- 
tion often  depends  upon  pronunciation,  and  can  only 
be  determined  by  hearing  the  name  spoken."  '^ 

§  775.  A  demurrer  saves  itself,  and  is  part  of  the 
record;  and  so  no  exception  lies  to  a  ruling  thereon, 
and,  if  made,  is  not  available  for  any  purpose ; '"   al- 

1*  Commouw.  v.  Gale,  11  ^^Commonw.  ?;.  Gill,  14  Gray,  400. 
Gray,  321.  is  People  v.  Eeagle,  60  Barb.  529. 


Chap.  XI.]  INCIDENTAL    ]VIATTERS,  ETC.  587 

though  special  grounds  of  demurrer  may  perhaps  thus 
he  brought  mto  the  record,  where  they  do  not  other- 
wise appear.^'' 

And  a  ruhng  on  demurrer  need  not  be  assigned  as 
a  cause  for  a  new  trial,  although  all  other  grounds 
must  be  specified  on  such  a  motion.'^ 

And  where  a  question  can  be  raised  by  demurrer  in 
the  court  below,  it  cannot  be  brought  to  the  appellate 
coiu^t  by  bill  of  exceptions  in  the  absence  of  such 
demurrer;  as,  for  example,  the  suflSciency  of  a  decla- 
i-ation.'^ 

In  ^ew  York,  a  demurrer  to  evidence  is  held  not 
to  be  a  right  of  such  a  nature  that  a  refusal  of  it  is  a 
ground  for  exception.^" 

§  776.  In  Maine,  no  exception  lies  to  the  refusal 
of  a  judge  to  order  a  nonsuit.^^  And,  in  "Vermont,  it 
is  held  that  the  question  of  allowing  a  plaintiff  to 
enter  a  nonsuit,  or  of  vacating  an  entry  of  nonsuit, 
rests  solely  in  the  discretion  of  the  court  in  which  the 
suit  is  pending;  and  a  judgment  of  the  County  Court, 
refusing  to  strike  off  a  nonsuit  which  has  been  entered 
by  the  plaintiff  in  an  action  of  account,  cannot  be  re- 
vised by  the  Supreme  Court  on  exceptions." 

§  777.  A  motion  to  set  aside  a  default  is  held,  in 
Maine,  to  be  addressed  to  the  discretion  of  the  court, 
and  the  ruling  thereon  not  to  be  reviewable.~^ 

^^  Whitten  V.  Graves,  40  Ala.         ^i  Stephenson  v.  Ins.   Co.  54 

582.  Me.  n. 

18  Gray?;.  Stiver,  24  Ind.  117.         ^2  Squires  v.  Burgess,  31  Vt. 

19  Batchelder   v.   Batcbelder,  466. 

2  Allen,  106.  23  Thornton    v.  Blaisdell,    37 

20  Colegrove  v.  R.  R.  20  N.  Y.     Me,  195. 
494. 


588  BILLS    0¥   EXCEPTION.  [Part  III. 

And  so,  as  to  tcstimouy  under  an  inquest,  in  a  case 
of  default,  the  defendant  is  held,  in  Illinois,  to  be  out 
of  court,  and  to  have  therefore  no  right  to  except,  but 
only  a  right  to  cross-examine  witnesses;  the  only 
course  being,  in  the  event  of  improper  testimony  or 
wrong  instructions,  to  make  application  for  setting 
aside  the  inquisition  and  granting  a  new  inquest;'* 
and  if  application  be  made  for  setting  aside  a  default 
itself,  the  determination  thereon  is  discretionary,  and 
not  reviewable.^^ 

And  more  especially  so  if  the  default  is  entered  by 
consent,  and  even  where  the  consent  is  conditional; 
as,  "if  the  foregoing  ruling  of  the  judge  is  correct, 
otherwise  the  default  is  to  be  stricken  off,  and  the 
case  is  to  stand  for  trial."  ^^  It  is  a  general  rule  that 
no  party  can  except  to  any  proceedings  of  a  court 
which  occur  in  accordance  with  his  request,  or  by  his 
consent.^^ 

§  778.  An  order  setting  down  a  cause  for  trial  is 
not  such  a  final  disposition  of  a  cause  as  will  entitle  a 
party  complaining  to  bring  the  matter  to  the  attention 
of  the  appellate  court,  upon  a  bill  of  exceptions.^* 

§  779.  It  is  held,  in  Wisconsin,  that  the  court  may 
at  discretion  allow  an  amendment  after  verdict,  set 
aside  the  verdict  thereupon,  and  grant  a  new  trial, 
where  the  necessity  of  an  amendment  at  that  stage 
does  not  result  from  an  inexcusable  negligence  of  the 

24  Morton  v.  Bailey,  1  Scam.  s?  Mudget  v.  Kent,  18  Me. 
214.  349. 

25  Wallace  f.  Jerome,  1  Seam.  ^8  gj.j^(jy  ^^  Furlow,  38  Ga. 
524.  108. 

26  Woodman  v.  Valentine,  22 
Me.  401. 


Chap.  XI.]  rN'CIDENTAL    MATTERS,  ETC.  589 

party;  although  it  is  required  that,  ordinarily,  an 
error  or  insufficiency  in  the  pleadings,  discovered  upon 
the  trial,  must  be  corrected  by  moving  without  delay 
for  leave  to  amend. "" 

§  780.  In  Pennsylvania,  it  is  held  that  sometimes, 
even  in  cases  where  error  might  lie  to  the  issuing  of 
an  execution  in  a  proper  case,  the  appellate  court  will 
not,  on  exceptions,  review  the  refusal  of  a  judge  to 
stay  execution,  "  the  court  having  a  discretion  in  the 
matter  which,  unless  greatly  abused,  is  not  review- 
able."^' 

§  781.  The  refusal  of  a  judge  in  a  criminal  trial  to 
ask  persons  summoned  as  jurors  whether  they  belong 
to  an  association  formed  for  the  purpose  of  enforcing 
the  law  under  which  the  defendant  is  indicted,  is  no 
ground  of  exception,  if  the  defendant's  counsel  dis- 
claims any  knowledge  or  suspicion  of  any  such  con- 
nection, and  assigns  no  reason  for  making  the  request 
for  such  inquiry.^' 

§  782.  In  Massachusetts,  the  order  of  a  single 
judge  sitting  in  equity,  directing  an  issue  of  fact  to 
be  tried  by  a  jury,  is  not  open  to  exception.^^ 

§  783.  1^0  exception  lies  to  the  decision  of  a  judge 
upon  the  question  whether  there  is  on  the  face  of  the 
note  in  suit  a  manifest  alteration,  which  requires  ex- 
planation from  the  party  producing  it  before  it  can  be 
read  to  the  jury,  nor  to  his  refusal  to  allow  the  jury 
to  consider  its  appearance  in  reference  to  the  question 

29  Kennedy    v.    Waugh,     23  ^^  Commonw.  z».  Thrasher,  11 
Wis.  468.  Gray,  55. 

30  Gamble  v.  Woods,  53  Pa.  32  Crittenden  t;.  Field,  8  Gray, 
St.  160.  621. 


590  BILLS    OF    EXCEPTION.  [Pakp  III. 

whether  or  not  it  was  received  in  good  faith  by  an 
indorsee  who  has  brought  an  action  upon  it,  if  the 
only  peculiai'ity  reUed  on  is  the  insertion  in  the  body 
of  the  note,  after  the  name  of  the  payee,  of  a  day  of 
payment  corresponding  with  the  last  day  of  grace, 
according  to  the  time  previously  stated  therein  for 
the  note  to  run.  ^^ 

§  784.  In  ISTew  Hampshire,  it  is  held  that  if  a 
question  of  the  sufficiency  of  a  notice  required  by  the 
rules  of  the  court  depends  upon  the  matter  of  dis- 
tance, and  it  be  settled  by  the  court  upon  affidavits 
exhibited  at  the  trial,  the  appellate  court  will  not, 
upon  exceptions,  revise  the  decision  thereon.''* 

§  785.  The  submission  of  a  legal  question,  such  as 
the  construction  of  a  written  instrument,  affi)rds  no 
ground  of  exception,  if  they  decide  it  aright;  ^^  and 
more  especially  if  this  was  done  at  the  exceptor's  owm 
request.'" 

§  78G.  Where  there  is  an  assessment  of  land  dam- 
ages brought  by  certificate  to  the  Superior  Court, 
and  the  officer  presiding  over  the  proceedings  of  the 
assessment  by  jury  certifies  with  the  verdict  a  decision 
by  himself,  in  a  formal  way,  by  a  bill  of  exceptions, 
which  bill,  without  any  adjudication  upon  the  verdict, 
is  allowed  by  the  judge  of  the  Superior  Court,  this  is 
not  such  a  bill  as  can  be  entertained  in  the  appellate 
court,  whose  function  it  is  merely  to  review  the 
rulings  of  the  court  immediately  below,  and  not  to 

^  Ives  V.  Baok,  2  Allen,  ^5  Qqq(J,jq^j,  Dayenport,  115 
236.  Mass.  570. 

34  Kent  V.  Tyson,  20  N.  H.  36  Randon  v.  Toby,  11  How. 
121.  (U.  S.)  519. 


Chap.  XI.]  INCIDENTAL    MATTERS,  ETC.  591 

pass  by  this,  and  look  into  the  proceedings  of  a  still 
inferior  tribunal.^'' 

In  Vermont,  however,  it  is  held  that  proceedings 
not  according  to  the  course  of  the  common  law,  as 
road  cases,  and  proceedings  to  assess  land  damages, 
where  the  land  is  condemned  for  a  railroad,  cannot  be 
brought  up  on  exceptions,  even  from  the  immediate 
lower  conrt.'^  The  mode  of  bringing  such  to  the 
notice  of  the  appellate  court  is  by  certiorari.^^  And 
likewise  in  Maine.*'' 

§  787.  Where  a  matter  of  fact  is  left  to  the  court 
alone,  without  a  jury,  the  decision  thereon  is  not  re- 
viewable.*^ And  not  even  if  it  goes  through  the  form 
of  taking  the  verdict  of  a  jury,  where  a  case  is  sub- 
mitted on  a  statement  of  facts,  by  the  terms  of  which 
the  court  is  to  render  judgment  for  one  party  or  the 
other,  thus  leaving  only  an  issue  of  law,  and  the 
judge  rules  that  on  the  facts  as  agreed  the  plaintiff  was 
not  entitled  to  recover.*^  And  it  seems  to  be  held,  in 
Illinois,  that  "  no  exceptions  can  be  taken  to  the  final 
judgment  of  the  court,  where  a  jury  is  dispensed 
with,  even  under  an  agreement  of  parties  that  both 
or  either  ]:)arty  shall  have  the  same  right  to  except  as 
if  the  cause  were  tried  by  a  jury,"  the  court  holding 
that  there  could  be  no  misdirection  on  a  point  of  law 
where  there  is  no  jury.  But  probably  if,  i  n  a  trial  by 
the   court,  there   was   manifestly  injustice   done   by 

2"  Tucker  r.  R.  R.  116  Mass.  ^^  Commissioners  v.  Spofford, 

124.  30  Me.  456. 

38  Courser    v.  R.    R.   25   Vt.  ^i  Hoar  v.Goulding,116  Mass. 

476.  132. 

^^  Lyman  v.    Burlington,  22  ^  Haas     v.   Harrington,    116 

Vt.  131.  Mass.  135. 


592  BELLS    OP    EXCEPTION".  [Part  III. 

admitting  improper  testimony,  or  rejecting  proper 
evidence,  such  rulings  would  be  reviewed.*^ 

In  Massachusetts,  the  decision  of  a  single  judge 
may  be  reviewed  on  matter  of  fact  by  the  whole 
court,  if  he  reports  the  whole  evidence,  which,  ui 
his  discretion,  he  may  refuse  to  do.** 

In  Yermont,  it  is  held  that  the  finding,  where  an 
issue  of  fact  is  tried  without  a  jury,  can  only  be  re- 
viewed where  the  whole  testimony  is  legally  and  clear- 
ly insufficient  to  support  the  judgment.*^ 

In  Connecticut,  a  decision  in  this  way  is  not  review- 
able, unless  some  question  of  law  arises  thereon.*^ 

In  Maine,  on  a  petition  for  a  review,  if  the  judge 
should  find  the  facts  not  proved  as  set  out  in  the  peti- 
tion, no  exception  lies.  But  if  he  should  find  the 
facts  proved,  a  refusal  to  grant  the  review  is  excep- 
tionable.*'' 

In  questions  of  mixed  law  and  fact  passed  upon  by 
a  court  alone,  specific  rulings  must  be  asked  for,  or 
there  will  be  no  basis  for  exceptions  on  the  ground 
of  mistake  in  law.*^ 

In  Iowa,  the  finding  of  a  court  as  to  fact  will  be 
reviewed  if  the  whole  testimony  is  brought  up,  and 
it  is  claimed  that  the  evidence  does  not  support  the 
judgment.  And  where  the  testimony  is  reduced  to 
writing,  and  signed  by  the  judge,  the  wi'iting  will  be 
treated  as  a  bill  of  exceptions.*" 

^3  Doe,    ex    dem.   v.    Sprag-         ^"^  Sturtevant  v.  Randall,  49 

gins,  1  Scam.  331.  Me.  446. 

44  Stearns  v.Fisk,  18  Pick.  24.          48  Kettell  v.   Foote,  3   Allen, 

45  Emerson  v.  Young,  18  Vt.  213. 

603.  49  Snell  v.  Kimmell,  8  Clarke 

46  R.  R.  V.  Kay,  22  Conn.  607.     (Iowa)  282. 


CnAi>.  XI.]  IT^-CIDENTAL   MATTERS,  ETC.  593 

§  788.  Preliminary  matters  are  largely  in  the  dis- 
cretion of  a  court.  And  so  the  action  of  a  judge 
refusing  to  order  further  specifications  will  not  read- 
ily be  reviewed.^"  And  so  where  exceptions  were 
taken  on  a  preliminary  question  of  present  insanity 
as  to  a  trial  under  an  indictment,  it  was  held  the  ex- 
ceptions could  not  be  entertained.^'  And  so  in  regard 
to  the  question  of  the  competency  of  a  witness  on  the 
ground  of  his  religious  belief.®' 

And,  in  Vermont,  it  appears  that  the  disallowance 
of  exceptions,  taken  during  the  progress  of  a  crim- 
inal trial,  being  discretionary,  cannot  be  revised  by 
the  Supreme  Court.*' 

§  789.  Ordinarily,  no  exception  to  the  Supreme 
Court  lies  to  the  decision  of  a  justice  of  the  peace. 
But,  in  Maine,  this  is  sometimes  allowable,  it  ap- 
pears.^ Nor  in  Rhode  Island  do  exceptions  lie  to 
the  rulings  of  a  special  Court  of  Common  Pleas  to 
the  Supreme  Court.**  ISTor  do  exceptions  lie  to  the 
rulings  of  Orphans'  or  Probate  Courts  at  common 
law.*''  Decisions  of  county  commissioners,  and  the 
rulings  of  a  court  on  appeal  thereon,  can  only  be 
reached  by  certiorari,  and  not  by  exceptions.*^  And 
so  the  adjudication  of  a  judge  of  tjie  District  Court 

^^  Gardner  iJ.Gardner,  2  Gray,  ^  Simpson  v.  Wilson,  24  Me. 

439.  438. 

^1  Freeman  v.  People,  4  Denio  ^  Stoddard  v.  Winsor,  3  R.  I. 

(N.  Y.)  24.  148. 

^2  Commonw.     v.     Hills,     10  ^  Mayhew  v.  Soper,  10  Gill 

Gush.  530.  &  Johns.  (Md.)  .366. 

°^  State  V.  Herbert,  1  Williams  ^^  Banks  v.  Commissioners,  29 

(Vt.)  595.  Me.  288. 

38 


594  BILLS   or   EXCEPTION.  [Part  III. 

ill  Maine,  as  to  the  facts  in  a  trustee  process,  is  con- 
clusive.^ 

§  790.  At  common  law,  no  bill  of  exceptions  lies 
in  cases  of  treason  and  felony.  And,  in  the  United 
States  Courts,  none  lies  in  any  capital  case.^^ 

§  791.  It  is  the  general  rule  that  an  appellate  court 
will  not  review  a  verdict  merely  on  exceptions,  with- 
out a  motion  for  a  new  trial,  on  the  ground  that  the 
verdict  is  against  the  evidence ;  ^  for  exceptions  lie 
only  to  the  rulings  of  the  judge,  and  not  to  errors 
of  the  jury.^^ 


CHAPTER  Xn. 

Matters  as  to  Evidence  and  Instructions 
which  are  not  subject  to  exception. 

§  792.  ^o  exception  lies  to  the  action  of  the  court 
below  in  admitting  material  evidence  after  the  testi- 
mony is  closed,  under  such  restrictions  as  would  pre- 
vent injustice  to  the  opposite  party.^  ^or,  on  the 
other  hand,  to  the  refusal  of  a  judge  to  allow  a  party 
to  introduce  evidence  in  corroboration  of  his  previous 
proof,  after  the  other  party  has  offered  rebutting  evi- 
dence.^ And  even  in  a  capital  case  it  is  discretionary 
with  the  court  to  admit  additional  evidence  after  the 

68  Fletcher  v.  Clarke,  29  Me.  ^i  Stanley  v.  Webb,  21  Barb. 

485.  148. 

6^  U.  S.  V.  Gilbert,  2  Sumner,  ^  Sprague  v.    Craig,    51   111. 

104.  288. 

^^  Harmon  v.  Harmon,  61  Me.  ^  Corey  v.  Janes,   15  Gray, 

224.  543. 


Ch  A.P.  XII.]       MATTERS    AS    TO    EVIDENCE,  ETC.  595 

argument  of  the  case  has  proceeded,  the  legal  right 
to  introduce  further  evidence  not  existing  at  that 
stage.  But  the  court  may  grant  the  right,  and  espe- 
cial]}^ when  the  evidence  offered  is  newly  discovered, 
when  there  has  been  no  laches  in  reference  to  it,  and 
when  the  evidence  is  of  a  character  so  material  in  its 
bearing  on  the  case  as  to  require  the  court  to  depart 
from  the  ordinary  course  of  proceeding  in  trials  by 
jury,  at  the  hazard  of  calling  the  attention  of  the  jury 
from  the  evidence  properly  introduced,  and  upon 
which  the  argument  has  been  made.  A  motion  of 
this  character,  in  any  event,  is  addressed  wholly  to 
the  discretion  of  the  court,  and  its  decision  is  final, 
and  not  a  matter  of  exception  to  the  ruling,  as  error 
in  matter  of  law."'  Evidence  may  be  allowed  in  re- 
buttal to  corroborate  the  plaintiff's  testimony  in  chief, 
and  the  defendant  cannot  except  to  its  admission.* 

§  793.  The  regulation  and  restriction  of  evidence 
are  also  largely  within  the  discretion  of  the  court ;  as, 
for  example,  where,  in  a  trustee  process,  under  Mass. 
Stat.  1839,  c.  107,  §  1,  a  presiding  judge  has  admitted 
a  deposition  instead  of  the  oral  testimony  of  the  wit- 
ness, no  exception  lies  to  the  restriction  of  any  sub- 
sequent examination  of  the  witness  to  such  facts  as 
would  tend  to  rebut  the  evidence  of  the  party  who 
caused  the  deposition  to  be  put  in.^  And  so  a  judge 
may  in  his  discretion  limit  the  number  of  witnesses  to 
be  examined  on  a  collateral  issue,  such  as  the  charac- 

3  Commonw.  v.  Dower,  4  ^  Hodgkius  v.  Pearson,  16 
Allen,  300.  Gray,  384. 

4  Wright  V.Foster,  109  Mass. 
57. 


5})6  BILLS    OF    EXCEPTION".  [rAnx  III. 

ter  of  the  plaintiff,  or  that  of  a  witness  in  the  cause; 
and  this  discretion  may  he  exercised  cither  hy  la3'ing' 
down  a  rule  at  the  commencement  of  the  examination 
limiting  the  numher  of  witnesses  to  he  called  on  each 
side,  or  hy  interposing  and  arresting  the  further  ex- 
amination, when,  in  the  opinion  of  the  judge,  the  in- 
quiry as  to  character  ought  not  to  he  carried  further. 
The  decision  of  the  court  in  this  regard  cannot  he 
reviewed  on  a  bill  of  exceptions,  but  only  on  a  motion 
for  a  new  trial."  And  especially  is  a  severe  I'cstriction 
in  this  regard  necessary  in  an  action  of  slander.  The 
Supreme  Court  of  ^ewYork  say  on  this  point,  "The 
limitation  of  impeaching  and  sustaining  witnesses  to 
three  on  a  side  in  this  case,  looks,  to  a  person  unac- 
quainted with  such  trials,  like  depriving  the  parties 
of  a  right.  But  the  surrounding  circumstances  would 
enable  the  judge  at  the  circuit  to  pei'ceive  whether 
any  benefit  would  result  from  an  increase  of  the  num- 
ber. There  is,  perhaps,  nothing  in  which  a  defendant, 
in  an  action  of  slander,  is  more  likely  to  err  than  in 
his  judgment  of  the  necessity  of  impeaching  the  char- 
acter of  the  plaintiff,  or  of  his  principal  witness.  The 
pleasure  he  derives  from  hearing  others  assail  a  char- 
acter which  he  has  aspersed  blinds  him  to  the  conse- 
quences which  often  result  from  an  indiscreet  or 
needless  attack.  If  the  character  of  a  witness  or 
party  is  in  truth  bad,  it  can  be  shown  by  a  few  Avit- 
nesses  as  well  as  by  many.  If  the  character  is  shown 
to  be  bad  from  the  transaction  itself,  as  when  he  is  an 
accomplice  of  a  villain,  or  when,  on  cross-examination, 
he  exhibits  himself  to  be  a  villain,  general  evidence 

^  Nolton  V.  Moses,  3  Barb.  34. 


Chap.  XII.]       MATTERS   AS    TO   EVIDENCE,  ETC.  597 

of  bad  character  will  add  nothing  to  it.  There  is, 
perhaps,  no  part  of  circuit  experience  in  which  so 
great  abuse  exists  of  what  the  law  permits  to  be  done 
for  the  discovery  of  truth,  as  is  exhibited  in  examina- 
tions into  general  character,  and  it  would  become  in- 
tolerable were  it  not  restrained  by  the  presence  and 
power  of  the  presiding  judge." 

On  cross-examination,  a  court  may  restrict  the  ap- 
plication of  memoranda  therein  elicited.'' 

§  794.  'No  exception  lies  to  the  rejection  of  evi- 
dence only  partly  admissible;  as,  for  example,  where 
two  cases  are  tried  together,  and  the  evidence  is  ad- 
missible in  one  of  them,  but  inadmissible  in  the  other .^ 
And,  on  the  other  hand,  if  exceptions  are  taken  to  the 
admission  of  evidence  on  the  ground  of  irrelevancy, 
if  there  be  a  single  point  to  which  it  is  properly  appli- 
cable, the  exceptions  will  not  be  sustained.^  And 
where  an  objection  is  true  in  part,  but  not  true  to  the 
extent  alleged  in  regard  to  the  evidence,  the  court  is 
not  bound  to  examine  whether  it  is  true  in  part,  but 
may  overrule  it  altogether.'^ 

And  if,  on  examination  of  interrogatories  proposed 
by  one  party  in  an  action,  to  be  answered  by  the  other 
on  oath,  any  of  them  seems  irrelevant,  the  judge  may 
order  it  expunged,  and  his  order  cannot  be  excepted 
to." 

§  795.  "Where  contradictory  evidence  is  admitted 
relating  to  testimony  of  the  adverse  party  apparently 

"*  Brooks  V.  Goss,  61  Me.  315.  ^^  Bullard  v.  Lambert,  40  Ala. 

8  Phillips  V.  Hoyle,  4  Gray,  208. 

568.  "  Elliott  V.  Lyman,  3  Allen, 

9Moodyi;.Sabin,9Cush.  505.  110. 


598  BILLS   OF   EXCEPTION".  [Part  III. 

concerning  the  same  transaction,  but  which  afterwards 
appeared  to  be  connected  with  a  different  transaction, 
this  affords  no  gronnd  of  exception,  unless  it  affirma- 
tively appears  that  the  jury  were  not  instructed  to 
disregard  it.^- 

§  796.  As  to  leading  questions,  they  are  largely 
within  the  discretion  of  the  court  to  allow  or  disallow. 
And  the  same  discretion  exists  to  receive  or  reject 
the  answers  to  leading  questions  in  a  deposition  as  in 
an  oral  examination  on  the  trial." 

§  797.  It  is  not  a  matter  to  which  defendants  can 
except,  that,  in  an  action  on  the  case,  they  were  ex- 
amined, and,  in  response  to  a  question,  went  beyond 
in  the  answer,  and  stated  matters  which  in  themselves 
were  irrelevant,  and  yet  prejudiced  their  case  before 
the  jury.^* 

§  798.  'No  exceptions  lie  to  the  admission  of  wit- 
nesses who  have  not  obeyed  the  order  of  the  court 
excluding  them  fi'om  the  court-room  until  called  to 
testify.^^ 

§  799.  Where  a  plaintiff  introduces  evidence  of  an 
offer  to  compromise  made  by  the  defendant,  and  the 
judge,  on  hearing  the  evidence,  pronounces  it  inad- 
missible, and  instructs  the  jury  to  disregard  it,  the 
defendant  cannot  except  to  its  admission.^'"' 

§  800.  As  to  immaterial  evidence,  its  admission, 
when  harmless,  is  no  ground  of  exception ;  nor  the 
admission  of  hearsay  evidence  on  an  immaterial  point;  '^ 

12  Randall  v.  Doane,  9  Gray,  ^^  Batchelder  v.  Batchelder, 
408.  2  Allen,  106. 

13  Bliss  v.Shunam,4T  Me.  253.  i"  Beatty  v.  Sylvester,  3  Nev. 

14  Streeter  v.  Evans,  44  Vt.33.     228. 
1'^  Comraonw .  i;.  Hall,  4  Allen, 

305. 


Chap.  XII. ]     MATTERS    AS    TO   EVIDENCE,  ETC.  599 

or  immaterial  questions  on  cross-examination.'®  And 
where  an  answer  makes  a  question  immaterial,  no  ex- 
ception can  be  sustained  to  the  questiori.^^ 

§  801.  If  account  books  be  improperly  admitted  in 
evidence,  and  afterwards  the  opposing  party  requests 
that  they  go  to  the  jury  to  prove  a  fact  favorable  to 
himself,  he  thereby  waives  his  right  to  object  to  the 
admission  thereof.^" 

And  no  exception  lies,  on  the  other  hand,  to  the 
rejection  of  an  account  book,  partly  on  inspection  of 
the  book  by  the  judge,  and  partly  on  specific  objec- 
tions of  the  opposite  party .^^ 

§  802.  In  regard  to  secondary  evidence,  it  was  held, 
in  a  case  where  a  life-insurance  company  brought  an 
action  on  a  note,  and  the  defence  was  set  up  of  a  want 
of  consideration,  and  thereon  the  defendant  offered 
evidence  to  prove  the  contents  of  the  policy  in  his 
own  possession,  without  showing  its  loss,  which  the 
court  rejected,  and  the  defendant  submitted  to  a  ver- 
dict for  the  plaintiffs,  that  the  defendant  could  not 
allege  in  the  appellate  court  that  the  evidence  offered 
by  himself  was  immaterial,  or  except  to  the  ruling 
excluding  the  parol  evidence.^"  The  admission  of 
parol  evidence  conforming  to  the  legal  interpretation 
of  a  deed  is  not  exceptionable,  since  such  evidence  is 
iramaterial.^^ 

And  on  a  trial  to  determine  the  validity  of  a  Cott- 
le Fowler  v.  County  Commis-         ^^  O'Brien  v.   Barry,  4  Gray, 
sioners,  6  Allen,  96.  605. 

^^  Flanders  v.  Davis,  19  N.  H.  ^2  j^^g  Co.  r.Chapman,  6Gray, 

139.  13. 

20  Ward   v.  Abbott,   14    Me.  23  Crittenden  v.  Field,  8  Gray, 

2T5,  629. 


600  BILLS    OF   EXCEPTION".  [Part  III. 

tract  of  sale,  under  which  the  plamtiff  clauns  title  to 
a  chattel,  the  defendant  cannot  except  to  the  discre- 
tionary act  of  the  judge  in  permitting  the  plaintiff  to 
modify  his  own  testimony,  and  introduce  further  evi- 
dence to  show  that  a  paper  delivered  to  him  by  the 
seller  at  the  time  of  the  transfer  was  merely  a  bill  of 
parcels,  although  the  plaintiff  had  previously  testified 
that  it  was  a  bill  of  sale,  and  that  he  had  it  in  posses- 
sion, and  the  defendant  had  called  for  its  production, 
the  court  holding  that  it  was  necessary  that  some 
inquiry  should  be  made  as  to  its  contents  in  order  to 
ascertain  whether  it  was  a  formal  bill  of  sale,  which 
ought  to  be  produced,  or  a  mere  bill  of  parcels,  which 
needs  not  be  produced.~^ 

§  803.  In  a  real  action,  if  deeds  are  introduced  in 
evidence  under  a  proposal  of  the  defendant  to  connect 
his  title  therewith,  which  he  afterwards  fails  to  do,  the 
plaintiff  cannot  except  to  the  admission,  the  result 
having  made  it  wholly  immaterial."'^ 

And  the  admission  of  other  proof  of  the  execution 
of  a  deed  is  no  ground  of  exception  by  a  party  who 
subsequently  calls  and  examines  the  subscribing  wit- 
ness for  a  similar  reason.-*' 

§  804.  While  the  essential  qualifications  of  an  ex- 
pert are  determinable  only  by  the  rules  of  law,  the 
possession  of  those  qualifications  by  any  one  offered 
as  an  expert  witness  is  exclusively  for  the  court  to 
determine,  and  no  exception  lies  to  a  ruling  thereon.^^ 

§  805.   A  bill  of  exceptions  will  not  lie  to  a  refusal 

24  Mullen  V.  Kavanagh,  101  ^  Commonw.  v.  Castles,  9 
Mass.  352.  Gray,  121. 

25  Webster  v.  Calden,  55  Me.  27  Dole  v.  Johnson,  50  N.  H. 
170.  459. 


Chap.  XII. ]    MATTERS   AS    TO    EVIDENCE,  ETC.  601 

to  strike  out  evidence  received  without  objection. 
The  remedy  in  such  a  case  is  to  ask  the  court  to 
charge  that  the  evidence  be  disregarded;  on  which 
request  a  refusal  of  the  court  is  reviewable .'^^  * 

§  806.  Whether  a  witness  has  sufficient  knowledge 
of  right  and  wrong,  and  of  the  nature  and  obligation 
of  an  oath,  is  wholly  discretionary  with  the  judge  to 
determine,  so  long  as  no  erroneous  view  is  taken  of 
any  legal  principle."^ 

§  807.  A  bill  of  exceptions  must  be  overruled, 
which  only  shows  that  the  defendant  offered  to  prove 
that  an  award  is  erroneous,  without  showing  the  par- 
ticular errors  relied  on  therein.^" 

§  808.  To  a  certain  extent,  a  comment  on  the  evi- 
dence by  the  court  is  not  open  to  exception.  And 
even  where  it  goes  to  the  length  of  expressing  an 
opinion  that  it  is  insufficient  to  support  the  action, 
if,  on  plaintiff's  request,  a  special  verdict  is  taken, 
whereon  the  jury  find  adversely  to  him  in  a  matter 
essential  to  his  case,  whereby  the  comment  of  the 
judge  is  rendered  immaterial,  no  exception  lies."^^  In 
order  to  render  such  comments  exceptionable,  it  must 
appear  that  the  expression  was  such  as  to  be  likely  to 
create  the  impression  in  the  minds  of  the  jury  that 
the  court  intended  wholly  to  exclude  the  evidence 
from  their  consideration,  and  that  such  evidence  had 
a  legal  tendency  to  prove  the  issue.^^  A  judge  may 
*  lu  some  states,  It  is  not  the  general  rule,  I  judge. 


^  Oswald  V.  Kennedy,  48  Pa.         ^^  Insurance   Co.  v.    Buffum, 

St.  13.  2  Gray,  550. 

29  Commonw.    v.   Mullins,    2         ^^  Sawyer  v.  Phaley,    33  Vt. 
Allen,  295.  69. 

30  Hubbell  v.  Bissell,  2  Allen, 
19t. 


602  BILLS    OF   EXCEPTION".  [Pari  III. 

express  his  opinion  in  the  way  of  advice,  if  he  gives 
the  jury  distinctly  to  understand  that  they  are  to 
exercise  their  own  judgment  in  passing  on  the  evi- 
denced^ And  so  suggestions  as  to  the  inconclusive- 
ness  of  the  evidence  on  a  particular  point  is  proper 
under  the  statute  in  Maine. ^*  But  the  comment  must 
not  involve  any  opinion  or  direction  in  matter  of  law.^^ 
And  it  was  held  in  a  suit  against  underwriters,  to  re- 
cover on  a  policy  for  the  loss  of  bank  bills  on  a 
vessel,  that  the  remark  of  the  judge  to  the  effect 
that,  in  the  absence  of  fraud,  the  amount  insm^ed  in 
the  policies  had  some  slight  tendency  to  prove  the 
amount  of  the  bills  on  board,  stated  no  legal  propo- 
sition, and  gave  no  direction  on  any  point  of  law,  and 
was,  therefore,  not  subject  to  exception.^^  And  yet  it 
has  been  held,  in  Massachusetts,  that  a  new  trial  may 
be  granted  if  the  opinion  expressed  on  the  evidence 
is  incorrect,  where  the  party  against  whom  the  opin- 
ion operates  yields  to  it  without  arguing  against  it.'*'' 
And  a  judge  may,  in  Maine,  express  the  opinion  that 
certain  portions  of  plaintiff's  evidence  have  no  ten- 
dency to  establish  the  issue  of  fraud.^ 

§  809.  As  to  directing  a  verdict,  that  can  only  be 
done  when  the  evidence  is  not  conflicting,  and  clearly 
establishes  the  issue  for  the  defendant. 

The  court  may  refuse  to  direct  the  verdict,  if  there 
be  an^^  evidence,  however  slight,  which  may  legally 
justify  a  verdict  for  the  plaintiff.^^ 

33  Crawford  V.Wilson,  4  Barb.  ^6  Wliitnej  v  Ins.  Co.  2  Met. 
617.  (Mass.)  8. 

34  Loud  V.  Pierce,  25  Me.  241.          s:  Curl  v.  Lowell,  19  Pick  27. 
3^  Davis    V.  Jeuney,    1    Met.         ^8  pygj.  j,  Qi.epne,2.3  Me.469. 

(Mass.)  221.  39  Smith  v.  Collins,  116  Mass 

398. 


Chap.  XII.]      MATTERS   AS    TO   EVIDENOE,  ETC.  603 

§  810.  Wliere  the  evidence  shows,  as  stated  m  a 
bill  of  exceptions,  that  a  plaintiff  is  not  entitled  to 
recover,  the  appellate  court  will  not  consider  the 
rulings  of  the  court  below.*" 

§  811.  The  refusal  of  a  judge  to  instruct  the  jury 
that  they  ought  not  to  convict  upon  the  uncorroborat- 
ed testimony  of  a  witness  whose  reputation  has  been, 
in  the  case  on  trial,  proved  to  be  bad,  is  not  subject 
to  exception.*^ 

§  812.  Immaterial  instructions  furnish  no  ground 
of  exception;  as  where  the  immateriality  arises  from 
the  final  result,*^  or  a  ruling  excluding  evidence  bear- 
ing only  on  the  amount  of  damages,  where  it  is  not 
claimed  that  the  damages  are  excessive.*'^  So  where 
the  instruction  bears  upon  a  matter  whence  the  ex- 
ceptor derives  no  rights.**  And  where  plaintiffs  re- 
quest instructions,  which  are  refused,  and  the  jury 
find  they  have  no  title  to  the  property  sued  for.*^ 

And  a  part  of  an  instruction,  erroneous  in  itself, 
but  nullified  by  correct  instructions,  is  not  a  ground 
of  exception.*^ 

And  where  a  case  has  been  given  to  the  jury  on 
special  instructions,  and  on  the  jury  failing  to  agree 
those  special  instructions  have  been  withdrawn,  and 
the  jury  are  charged  to  find  for  the  defendant,  and 
they  find  accordingly,  no  exceptions  will  lie  to  the 
special  instructions,  they  having  been  superseded.*'' 

*^  Jones  V.  Graham,  24  Ala.  ^  Beeman  v.  Lawton,  37  Me. 

451.  546. 

41  Commonw.  v.  Bos  worth,  6  ^^Waikerv.  Blake, ST  Me.  3*73. 
Gray,  4T9.  ^^  Oxnard  v.  Swanton,  39  Me. 

42  State  V.  Murphy,  61  Me.  56.  128. 

«  Moody  V.  Inhab  ,  &c.,  61  ^7  Kelley  v.  Hendril,  26  Mich. 
Me.  264.  255. 


604  BILLS    or   EXCEPTIOI^^.  [Part  III. 

And  a  refusal  to  give  an  instruction,  sound  in  law, 
but  inapplicable,  cannot  be  excepted  to,^^  even  when  a 
jury  come  in  without  agreeing,  and  a  defendant  claims 
to  have  been  prejudiced  by  the  refusal.^^ 

§  813.  !N^or  can  a  party  except  to  an  omission  to 
give  a  definite  instruction  which  was  not  requested.^" 
!N^or  to  a  refusal,  on  a  murder  trial,  to  instruct  the 
jury  that,  on  the  evidence,  another  person  had  an 
equally  strong  motive  with  the  prisoner  to  commit  the 
alleged  crime.^^  ^or  to  the  refusal  of  instructions 
offered  by  the  adverse  party .^~  !Nor  to  incorrect  in- 
structions, asked  for  by  himself.'^^  iJ^or  to  evidence  in- 
troduced by  himself,  nor  to  instructions  based  thereon 
too  favorable  to  him.^*  N^or  to  instructions  not  given 
verbatim,  but  substantially  as  requested.^^  Instruc- 
tions requested  may  be  modified,  or  have  explanatory 
clauses  attached  by  the  court,  and  if  they  then  express 
the  law,  they  are  not  exceptionable,  because  not  given 
in  the  form  requested.^*'  And  even  where  the  lan- 
guage of  an  instruction  by  the  court  is  not  critically 
exact,  yet  if  it  is  evident  that  the  principle  intended 
to  be  expressed  is  a  correct  one,  and  if  the  attention 
of  the  judge  was  not  called  to  the  inaccuracy  at  the 
time,  it  is  not  open  to  exception. ^^ 

48  Norton  v.  Kidder,  54  Me,  ^3  West  v.  Lynn,  110  Mass. 
193.  518. 

49  Foote  V.  Foote,  13  Allen,  ^  Nixon  v.  Hammond,  12 
412.  Cush.  285. 

^  Gardner  v.  Gooch,  48  Me,  ^^  Burton^  v.  March,  6  Jones 

48*7.  (N.  C.)  409. 

^^  Commonw.    v.     Dower,    4  ^^  Abbott  v.  Stirblen,  6  Clarke 

Allen,  297.  (Iowa)  197. 

^2  Bailey     v.     Campbell,      1  ^"  Ray  v.  Lipscomb,  3  Jones, 

Scam.  (111.)  47.  185. 


Chap.  XII.]      MATTERS   AS    TO    EVIDENCE,  ETC.  605 

§  814.  Where  a  jury  returned  into  court  and  re- 
ported that  they  were  not  able  to  agree  as  to  the  guilt 
of  a  prisoner,  and  the  foreman  informed  the  court 
that  there  was  no  prospect  of  an  agreement,  and 
asked  whether  a  juror  had  a  riglit  to  set  aside  the 
provisions  of  the  statute  against  the  sale  of  ale  be- 
cause the  city  government  had  permitted  persons  to 
sell  it,  there  being  but  one  dissenting  juryman,  and 
the  court  instructed  the  jury  that  they  could  not  dis- 
regard any  of  the  provisions  of  the  statute  which 
prohibited,  not  only  the  sale  of  ardent  spirits,  but 
also  of  ale;  that  both  the  rights  of  the  defendant  and 
the  interest  of  the  public  required  that  these  cases 
should  be  terminated;  and  that,  while  no  juror  should 
render  a  verdict  against  his  convictions,  it  was  a  fact 
for  any  dissenting  juror's  consideration  that  his  asso- 
ciates differed  from  him,  —  it  was  held  that  there  w  as 
no  ground  for  exception  by  the  defendant.^^ 

§  815.  In  Massachusetts,  exceptions  do  not  lie  to 
judgments  on  a  plea  in  abatement,  nor  instructions  to 
a  jury  in  regard  thereto. ^^ 

§  816.  It  is  no  ground  for  a  bill  of  exceptions  that 
a  court  refuses  to  instruct  a  jury  on  a  point  of  law  so 
8tated  as  to  involve  a  question  of  fact ;  as  where  an 
opinion  is  requested  "  under  the  circumstances  of  the 
case,"  which  are  not  as  yet  found  as  facts.^° 

§  817.  In  certain  cases,  no  exception  lies  to  refer- 
ring the  determination  of  a  matter  in  part  to  the  ex- 
perience of  a  jury;  as,  for  example,  in  a  suit  against 

^^  Commonw.  v.  Whalen,  16  ^^  U.  S.  V.  Burnhatn,  1  Mason, 
Gray,  25.  57. 

^9  Sawyer    v.  Pratt,   9  Met. 

no. 


606  BILLS    OF   EXCEPTION.  [Part  III. 

the  drawer  of  a  bill  of  exchange  drawn  for  his  ac- 
commodation, where  the  defence  was,  that  the  bill  had 
been  altered  so  as  to  be  payable  in  sixty  days,  instead 
of  six  days,  and  the  only  evidence  of  alteration  was 
on  the  face  of  the  bill,  and  the  judge  first  instructed 
the  jury  that  the  question  was  to  be  decided  on  in- 
spection, and  then  that  they  might  consider  the  prob- 
ability or  improbability  that  an  accommodation  bill 
would  be  made  payable  in  six  days.  It  was  held  that 
the  instruction  was  not  open  to  exception.'"'^ 

§  818.  A  party  cannot  except  to  the  remark  of  the 
court  in  charging  the  jury,  which  appears  to  have  been 
favorable  to  his  case,  and  could  not  be  prejudicial  to 
him,  even  although  the  remark  was  irregular,  and 
indicated  the  private  opinion  of  the  judge.^^ 

§  819.  In  a  penal  action,  no  exception  can  prop- 
erly be  taken  to  the  refusal  of  the  judge  to  instruct 
the  jury  that  the  evidence  to  justify  a  conviction 
must  be  at  least  equal  to  the  testimony  of  one 
unimpeached  witness,  when,  instead  thereof,  he  in- 
structs them  that  the  evidence  must  be  such  as  to 
satisfy  them,  beyond  any  reasonable  doubt,  of  the 
defendant's  guilt.^ 

61  Davis    V.  Jenney,   1  Met.         ^^  Commonw.    v.    Tuttle,    12 
(Mass.)  221.  Cush.  604. 

62McDougall   V.  Sbirfey,   18 
N.  H.  108, 


Chap.  Xlll.]  EXCEPTIONS   TO    EVIDEIfCE.  607 

CHAPTER    Xm. 
Exceptions  to  Evidence. 

§  820.  A  GENERAL  objection  merely  goes  to  the 
competency  of  evidence,  and  not  to  the  order  of  time 
in  which  it  is  to  be  introduced,  as  whether  on  cross- 
examination  or  not.  When  the  latter  point  is  the 
basis  of  the  objection,  the  attention  of  the  court,  and 
of  the  opposite  party,  should  therefore  be  called  to  it 
by  a  specific  objection,  so  that  the  defect,  if  any  exist, 
may  be  obviated.  And  a  wider  range  may  properly 
be  allowed  in  the  cross-examination  of  a  party  than 
of  another  witness.^ 

§  821.  In  Ohio,  the  statute  allowing  exceptions  for 
the  purpose  of  reviewing  on  error  the  issues  of  fact, 
or  the  weight  and  sufficiency  of  the  evidence,  does 
not  apply  to  proceedings  before  justices  of  the  peace, 
wherein  exceptions  will  lie  under  the  statute  only  to 
questions  touching  the  competency  or  relevancy  of 
evidence.- 

§  822.  A  bill  of  exceptions  must  clearly  set  out  the 
circumstances  of  the  rejection  of  evidence  offered. 
And  a  defendant,  to  avail  himself  of  an  exception  to 
the  refusal  of  the  court  to  allow  him  to  introduce 
certain  testimony,  must  have  offered  it  before  he  rested 
the  defence,  or  it  must  clearly  appear  that  the  testi- 
mony offered  was  in  answer  or  rebuttal  to  the  evi- 

1  Knapp  V.  Schneider,  24  ^  Ohio  ex  rel.  v.  Wood,  22 
Wis,  10.  Ohio  St.  538. 


608  BILLS    or    EXCEPTIOIT.  [P^rt  IIT. 

dence  of  the  plaintiff  after  the  plaintiff  had  resnmed 
the  case.^  It  must  be  shown  what  was  proposed  to  be 
proved,*  where  the  objection  is  to  the  matter  of  the 
evidence,  and  not  merely  to  the  competency  of  a  wit- 
ness.^ And  its  materiality  and  relevancy  must  appear, 
for  otherwise  the  appellate  court  could  not  determine 
w^hether  it  was  properly  excluded  or  not.^  And  so, 
where  a  bill  showed  an  exception  to  the  ruling  of  the 
judge  in  refusing  to  allow  a  letter  of  the  defendant 
to  be  read  in  evidence,  but  did  not  set  out  the  con- 
tents of  the  letter,  the  exception  was  held  unavailing, 
because  the  court  could  not  know  whether  the  con- 
tents were  relevant  to  the  issue  or  not/  And  that  an 
improper  question  was  allowed,  on  the  other  hand,  to 
be  asked,  is  not  available,  if  it  does  not  appear  what 
the  answer  was,  the  rule  being  applicable  as  well  to 
admission  as  to  exclusion.^  And  so  a  question  must 
be  shown,  or  the  appellate  court  cannot  say  whether 
the  circuit  court  erred  in  refusing  to  allow  the  witness 
to  answer  it.® 

And  the  grounds  of  rejection  must  be  set  out  in 
relation  to  a  rejected  deposition;  and  where  a  bill  of 
exceptions  merely  stated  the  offering  and  rejection  of 
a  deposition,  but  did  not  state  whether  the  rejection 
was  on  the  ground  of  interest  in  the  deponent,  infor- 
mality in  the  caption,  irrelevancy,  or  other  cause,  it 
was  held  imavailing/" 

3  Speyer  v.  Stern,  2  Sweeney  "*  Sewoll  v.  Eaton,  6  Wis.  490. 
(N.  Y.)  516.  8  Church  v.  Drummond,  1  Ind. 

4  State  V.  Staley,  14  Min.  114.  11. 

5  State  V.  Jim,  3  Jones  (N.  C.)  ^  Warner  v.  Manski,  IT  111. 
348.  234. 

6  Street  v.  Bryan,  65  N.  C.  i"  Comstock  v.  Smith,  23  Mc. 
619.  202. 


Chap.  XIII.]  EXCEPTIONS   TO   EVIDENCE.  609 

§  823.  In  regard  to  the  admissibility  of  a  dying 
declaration,  it  is  held,  in  North  Carolina,  —  and  this 
donbtless  is  the  general  rule,  —  that  such  a  declara- 
tion is  admissible  only  as  to  those  things  of  which  the 
declarant  would  have  been  admitted  to  testify,  if 
sworn  as  a  witness  in  the  case;  and  if  it  is  not  the 
statement  of  a  fact,  but  only  of  an  opinion,  it  is  to  be 
excluded ;  as  where  the  deceased  was  shot  at  night  in 
a  house  from  the  outside,  and  in  extremis  he  declared, 
"  It  was  A  who  shot  me,  though  I  did  not  see  him," 
this  declaration  was  held  properly  rejected  as  evi- 
dence. And  the  decision  of  a  judge  in  regard  to  the 
admissibility  of  a  dying  declaration  is  held  to  com- 
prise a  decision  of  both  fact  and  law,  —  fact,  as  to 
what  the  declaration  was,  and  as  to  the  circumstances 
thereof;  and  law,  as  to  whether  it  is  competent  testi- 
mony, either  alone  or  in  connection  with  the  circum- 
stances. On  the  former  the  decision  is  not  reviewable, 
although  on  the  latter  it  is  so.'^ 

§  824.  It  is  imperative  that  a  bill  of  exceptions  set 
out  a  brief  of  the  oral  testimony,  and  a  copy  of  the 
written;  the  latter  either  inserted  or  so  clearly  con- 
nected by  reference  as  to  be  readily  identified.  The 
better  practice  is  to  insert  the  documentary  or  other 
evidence ;  ^~  and  all  the  evidence  relating  to  the  point 
assigned  as  error  must  be  so  included  or  referred  to.'^ 
If,  however,  a  written  document  is  already  a  part  of 
the  record  legitimately,  it  needs  not  be  recopied  into 

"  State  V.  Williams,  67  N.  C.         ^^  Reid  v.  Spencer,  38  Ga.  596  ; 
14.  Linn  v.  Hoag,  30  Wis.  159. 

^^  White     V.     Manufacturing 
Co.  38  Ga.  590. 

39 


610  BILLS   OF   EXCEPTION".  [Part  III. 

the  bill  of  exceptions,  but  may  be  referred  to  with  the 
number  of  the  page  of  the  transcript.  But  oral  evi- 
dence cannot  so  be  referred  to  where  the  clerk  has 
set  it  out  in  the  transcript.  And  so  the  following  bill 
of  exceptions  was  held  to  present  no  question  for  the 
consideration  of  the  court. 

"  A   B    1 

*  j  Decatur  CmcuiT  Court. 

"  Be  it  remembered  that,  on  the judicial  day 

of  the  fall  term,  1870,  of  said  court,  the  said  cause 
came  on  for  trial  before  the  court  without  the  inter- 
vention of  a  jury;  whereupon  the  plaintiffs  introduced 
the  following  evidence,  to  v;it  (see  pages  8  to  18) ; 
and  whereupon  the  defendant  introduced  the  follow- 
ing evidence,  to  wit  (see  pages  18  to  28  inclusive) ; 
and  while  J.  R.,  one  of  the  plaintiffs,  was  on  the  stand 
as  a  witness,  the  defendant  put  to  him  questions  one 
(1),  two  (2),  three  (3),  and  four  (4),  to  wit  (see  pages 
28  and  29)  ;  but  the  court,  upon  the  objection  of  the 
plaintiffs'  attorneys,  refused  to  allow  said  questions, 
or  either  of  them,  to  be  answered;  to  wliich  ruling 
the  defendant  objected  and  excepted  at  the  time,  and, 
after  the  evidence  was  all  heard,  made  the  following 
finding,  to  wit  (see  page  5) ;  and  whereupon  the  de- 
fendant filed  the  following  motion  for  a  new  trial,  to 
wit  (for  motion  for  new  trial  see  page  6),  which  mo- 
tion the  court  overruled,  and  rendered  final  judgment 
on  said  finding;  —  to  all  of  which  the  defendant  ob- 
jected and  excepted,  and  still  objects  and  excepts, 
and  asks  that  his  bill  of  exceptions  be  signed,  sealed, 


Chap.  XIII.]  EXCEPTIONS    TO   EVIDENCE.  Gil 

and  made  a  part  of  the  record;  which  is  done  accord- 
inglj.^^  J.  M.  W.    (SEAI..)" 

§  825.  It  is  not  sufficient,  in  regard  to  a  written 
document  used  as  evidence,  that  the  bill  of  exceptions 
describe  it  as  to  its  purport  or  effect.  It  must  be  set 
out  in  the  bill  verbatim,  or  else  be  available  as  an  ex- 
hibit plainly  referred  to  and  identified.'^  But  it  is 
held  a  sufficient  reference  if  the  bill  states  that,  upon 
the  foregoing  evidence  and  admissions,  "  the  written 
vouchers  on  file,  and  on  no  other  evidence,"  &:c.,  even 
though  there  are  uncontested  vouchers  also  in  evi- 
dence, concerning  which  the  evidence  is  not  set  out 
by  the  bill,  inasmuch  as  all  the  evidence  relating  to 
the  points  of  contest  is  set  out  so  as  to  be  distinctly 
available."'' 

§  826.  In  regard  to  the  rule  that  all  the  evidence 
on  which  a  decision  complained  of  rests,  or  an  in- 
struction, it  is  presumed,  where  this  is  not  done,  that 
there  was  other  evidence  to  justify  the  decision  or  the 
charge,  and  the  judgment  below  must  be  affirmed. 
This  is  the  uniform  princi])le  in  all  the  authorities,  and 
is  a  necessary  corollary  of  the  presumption  that  all 
things  are  presumed  correct,  unless  error  is  affirma- 
tively shown. '^ 

§  827.  The  bill  must  distinctly  affirm  that  all  the  evi- 
dence in  the  case  under  a  general  excei)tion,  or  all  in  a 
special  part  of  the  case  under  a  particular  exception  is  set 
out.     And  it  has  been  held  that  a  recital  that,  "  under 

1*  Stewart  V.  Rankin,  39  Ind.  ^^  Ivey  v.   Coleman,  42   Ala. 

162.  409. 

15  Dillard  v.   Parker,  25  Ark.  i"  Gallagher    v.    Brandt,    52 

503.  111.  81. 


612  BILLS   OF   EXCEPTION.  [Paet  III. 

the  facts  stated  within,  the  court  held  and  ordered," 
&c.,  was  not  sufficient  to  show  that  all  the  evidence 
is  set  out  in  the  record,  and  this  although  it  appears 
that  the  facts  were  agreed  on  by  consent. ^^  And  so 
with  the  recital  "upon  the  foregoing  evidence  the 
court  decided,"  &:c.^'*  And  where  a  bill  merely  states 
that  a  deed  was  oflfered  in  evidence,  it  has  been  held 
not  to  show  that  it  was  used  or  read  in  evidence ;  ^" 
and  in  such  case  the  bill  is  not  available.-'  In  a  case 
wherein  the  bill  recited  that  "  on  the  trial  of  the  cause 
the  following  evidence  was  before  the  court,"  the  re- 
cital was  held  insufficient  to  show  that  all  the  evidence 
was  set  out.^-  And,  in  Indiana,  under  a  rule  of  court 
that  "In  every  bill  of  exceptions  purporting  to  set 
out  the  evidence,  upon  motion  for  a  new  trial,  over- 
ruled, the  words  ^  This  was  all  the  evidence  given  in 
the  cause,'  are  to  be  regarded  as  technical  and  indis- 
pensable to  repel  the  presumption  of  other  evidence," 
it  is  settled  that  these  words,  "  The  following  was  all 
the  evidence  given  to  the  court,"  do  not  meet  the  re- 
quirement of  the  rule.-^  And  where  the  bill  professes 
to  set  out  "an  outline  of  all  the  testimony  in  the  case," 
it  is  insufficient  for  a  general  exception,  or  to  justify 
an  inquiry  into  the  propriety  of  a  refusal  below  to 
gi'ant  a  new  trial.^* 

However,  a  condensed  statement  of  the  whole  e\4- 

^^  May  V.  Lewis,  41  Ala.  315.          ^2  Bender    v.    State    ex   rel, 

(Jud.c:e  J.  dissenting.)  &c.  26  Ind.  286. 

1^  Kirksey  v.  Ilardaway,   41          ^^  Chapel    IK    Washburn,    11 

Ala.  330.  (Judge  J.  dissenting.)  Ind.  395  (and  subsequent  cases 

2*^  Page  V.    O'Brien,   36   Cal.  follow  this  decision). 
559.  24  Buckmaster  V.  Cool,  12  111, 

21  Kelley    v.   Union    County,  ^Q. 
23  Ark.  331. 


Chap.  XIII.]  EXCEPTIONS   TO   EVIDENCE.  G13 

dence,  where  it  is  oral,  is  sufficient,  or  even  a  state- 
ment of  the  tendency  of  evidence  to  prove  certain 
facts,  in  Virginia.-^  And,  in  Michigan,  a  statement 
of  the  evidence  of  facts  on  which  an  instruction 
rests,  or  a  statement  that  there  was  such  evidence,  is 
allowed;  but  these  appear  exceptions  to  the  general 
rule.^°  And,  in  Virginia,  it  is  held  that  a  bill  of  ex- 
ceptions to  a  decision  granting  or  refusing  a  new 
trial,  is  not  to  set  out  the  evidence  of  the  witnesses 
examined  on  the  trial,  instead  of  the  facts  appearing 
to  the  court  to  be  proved  by  such  evidence,  unless  by 
rejecting  the  exceptor's  evidence,  and  giving  full  force 
and  credit  to  that  of  the  adverse  party,  it  still  appears 
that  the  decision  below  is  wrong.^" 

§  828.  Where  evidence  is  admitted,  which  is  com- 
petent when  connected  with  other  evidence,  an  excep- 
tion to  its  admission  cannot  be  sustained  unless  the 
bill  of  exceptions  affirmatively  shows  that  such  other 
evidence  was  not  introduced,  or  that  the  evidence 
admitted  was  improperly  used  for  a  purpose  for  which 
it  was  not  competent.^^ 

§  829.  Where  a  diagram  is  offered  and  rejected,  it 
must  be  set  out  to  reserve  the  question  on  the  ruling.^" 

§  830.  Wliere  a  deed  is  used  in  evidence,  but  not 
material  to  the  points  before  the  appellate  court,  both 
parties  claiming  under  it,  it  needs  not  be  set  out  in  the 
bill.-" 

25  Forsyth  v.  Matthews,  15  198.  (See  also  6  Gratt.  219  and 
Gratt.  103.  287.) 

26  Tyler  v.  People,  8  Mich.  ^8  Whitcher  v.  McLaughlin, 
320.  115  Mass.  167. 

2'  Paslcy  V.  English,  5  Gratt.  29  -^  r^  ^^  i^ish,  40  Ind.  277. 
148  ;  Forkner  v.  Stuart,  6  Gratt.  ^o  Rugg  v.   Towner,   41  Ga. 

316. 


614  BILLS    OF   EXCEPTION".  [Part  III. 

§  831.  Notwithstanding  the  jury  may  have  viewed 
the  locus  in  quo,  yet  the  rule  of  all  the  evidence  may 
be  suificiently  complied  with,  as  the  examination  of 
the  place  is  only  to  be  regarded  as  a  measure  to 
enable  the  jury  properly  to  understand  the  testimony 
actually  adduced  in  the  case  on  which  their  verdict 
must  be  based,  and  not  to  enable  them  to  become 
silent  witnesses  in  the  case.^^ 

§  832.  Where  failure  to  suppress  certain  parts  of 
a  deposition  is  assigned  as  a  reason  for  a  new  ti'ial,  a 
bill  of  exceptions  must  show  the  motion  to  suppress, 
and  also  the  parts  of  the  deposition  to  be  suppressed.^^ 

Wliere  interrogatories  are  not  necessary  to  render 
the  answers  intelligible,  they  need  not  be  set  out  in  a 
bill  of  exceptions."^"^ 

§  833.  Where  exceptions  are  taken  to  the  exclusion 
of  evidence  to  prove  a  set-off,  the  bill  must  set  out 
the  items  of  the  set-off,  or  the  court  will  not  entertain 
the  objection.^^ 

§  834.  Where,  in  an  action  upon  a  judgment  ren- 
dered in  another  state,  the  bill  of  exceptions,  taken 
to  the  admission  of  the  record  in  evidence,  does  not 
embody  the  record  itself,  the  appellate  court  will  not 
notice  it,  even  though  a  record  answering  the  descrip- 
tion of  the  one  sued  on  is  inserted  in  the  transcript 
by  the  clerk.^^ 

§  835.  'WHiere  a  bill  of  exceptions  is  taken  to  the 
admission  of  a  deposition  on  the  gi'ound  that  it  was  a 

31  R.  R.   V.  Bowen,   40  Ind.         ^4  Rankin   v.  Butler,   2  S.  & 

648  (overruling  prior  cases).  M,  4 73. 

22  Bargis  v.  Farrar,  45   Ind.         ^  Wright  v.  Bank,  6  S.  &  M. 

41.  251. 

^  Carey  v.  Giles,  10  Ga.  1. 


Chap.  XIII.]  EXCEPTIONS    TO    EVIDENCE.  615 

deposition  not  taken  in  the  pending  suit,  but  in  an- 
other suit  between  the  same  parties,  and  the  deposi- 
tion is  not  set  out,  the  verdict  will  not  be  disturbed.^^ 

§  836.  The  omission  of  a  bill  to  state  that  it  con- 
tains all  •  the  evidence  is  not  cured  by  an  indorsement 
thereon  by  the  appellee,  "  I  am  satisfied  with  the  fore- 
going bill  of  exceptions,"  with  his  signature  attached.^^ 

§  837.  "Wliere  a  plaintiff  has  established  a  'prima 
facie  case,  a  ruling  of  the  court,  requiring  him  to  pro- 
duce further  e^^dence,  without  the  defendant's  having 
adduced  any  proof,  is  exceptionable.^^ 

§  838.  In  a  probate  case,  tried  before  the  court 
without  the  intervention  of  a  jury,  a  recital  in  the 
bill  of  exceptions  that  the  appellants  "  objected  to 
the  fifth  volume  of  Porter's  Reports,"  which  was 
"  offered  and  read  in  evidence  "  by  the  appellee,  "  be- 
ing read  for  the  purpose  of  proving  any  fact  or  facts, 
but  the  court  overruled  their  objection,  and  they  ex- 
cepted," has  been  held,  in  Alabama,  insufficient  to 
show  that  the  volume  was  read  in  evidence  for  the 
purpose  of  proving  any  fact  or  facts."^ 

§  839.  In  Iowa,  it  is  held  that,  where  equitable 
issues  are  tried,  and  the  evidence  is  in  writing,  it 
need  not  be  embodied  in  a  bill  of  exceptions,  but 
may  be  brought  up  merely  under  a  certificate  of  the 
clerk.*"  And  so  in  Georgia,  documentary  evidence 
attached  to  a  bill  as  exhibits.*^     In  Illinois,  it  has  been 

36  Wright  V.  Batik,  6  S.  &  M.  ^^  Bartee   v.  James,  33  Ala. 

251.  34. 

2"  Gas  Co.  V.  Graham,  35  111.  *^  Bank  v.  Harvey,  16  Iowa, 

846.  141. 

38  Kent  V.  Willey,   11  Gray,  ^i  Carey  v.  Giles,  10  Ga.  1. 

368. 


616  BILLS   OF  EXCEPTION.  L^'aet  IIL 

held  that,  in  chancery,  all  decisions  on  motions,  all  the 
evidence  in  a  cause,  and  the  decrees,  are  matters  of 
record  without  a  bill."*^  But,  in  a  recent  unreported 
case  (Brockenbrough  v.  Dresser) ,  this  seems  to  have 
been  suddenly  overturned,  and  it  is  held  that  even 
documentary  evidence  cannot  be  incorporated  into 
the  record  and  copied  with  the  transcript  by  the 
clerk  in  a  chancery  cause. 

§  840.  Affidavits  in  support  of  any  motion  are  not 
a  part  of  the  record  until  brought  in  by  a  bill  of  ex- 
ceptions.^^ In  this  all  the  authorities  agree,  I  beUeve, 
without  a  single  exception. 


CHAPTER  XIY. 

Exceptions  to  Instructions. 

§  841.  Even  where  instructions  are  required  by 
law  to  be  reduced  to  writing,  they  are  not  considered 
a  part  of  the  record  unless  brought  in  by  a  bill  of 
exceptions,  and,  unless  excepted  to,  they  will  not  be 
regarded  by  an  appellate  court.^  And  a  wrong  refusal 
to  give  is  exceptionable,  as  well  as  an  erroneous  in- 
struction actually  given.^ 

The  only  exception,  I  believe,  to  the  necessity  of  a 
bill  of  exceptions,  in  relation  to  the  giving  of  an 

42  Swift  V.  Castle,  23  111.  215.  i  R.    R.   v.  Graham,   46  Ind. 

43  Garner  v.  White,  23  Ohio  240  ;  Fisher  v.  Allison,  46  Ind. 
St.  192  ;  Whaley  v.  Gleason,  40     593. 

Ind.  405.  2  Drew  u.  Beall,  62  III.  164. 


CHAi-.  XIV.]     EXCEPTIONS   TO   INSTRUCTIONS.  617 

erroneous  exception,  is  the  state  of  Florida,  where, 
if  the  instruction  is  in  writing,  and  attested  by  the 
judge,  it  will,  if  manifestly  irrelevant  to  the  issue,  be 
passed  upon  by  the  appellate  court,  even  if  there  be 
no  bill,  or,  if  one,  yet  the  instruction  is  not  incorpo- 
rated thereiii.'^ 

§  842.  The  rule  in  regard  to  setting  out  instruc- 
tions is  the  same  as  that  in  regard  to  setting  out  evi- 
dence, in  this,  that,  under  a  general  exception,  the 
whole  must  be  incorporated,  and,  under  a  specific 
exception,  only  so  much  as  is  necessary  to  establish 
the  error  complained  of  needs  be  stated.  And,  under 
the  system  of  charging  in  vogue  in  the  United  States 
Courts,  the  latter  is  usually  the  only  mode  available.* 
And,  of  course,  an  exception  to  a  part  of  the  charge 
of  a  judge  only  presents  for  the  consideration  of  the 
appellate  court  the  legal  proposition  embraced  in  that 
part  so  excepted  to.^ 

§  843.  And  where  a  portion  of  instructions  only  is 
given,  the  court  will  presume  that  the  judge  gave  all 
other  proper  instructions.^ 

§  844.  In  California,  the  distinction  is  drawn,  that, 
where  a  party  procures  the  giving  of  an  instruction, 
the  opposite  party  may  except  generally  without 
specifying  what  portion  is  objectionable;  but  where 
an  instruction  is  given  by  the  court  of  its  own  motion, 
a  specific  objection  must  be  applied.''  I  do  not  see 
the  reason  of  tjie  rule,  especially  where  the  court  has 

3  Fash  V.  Clark,  8  Fla.  16  ;  ^  Varnum  v.  Taylor,  10  Bosw. 
McKay  v.  Bellows,  ibid.  31 .  148. 

^  Stirnpson  V.  R.  R.  3  How.  ^  Hervey  v.  Nourse,  54  Me. 
(U.  S.)  553.  256. 

7  Shea  V.  R.  R.  44  Cal.  415. 


618  BILLS   OF   EXCEPTION.  [Part  III. 

the  power  to  modify  an  instruction  asked,  and  the 
Supreme  Court  seem  to  intimate  a  doubt  as  to 
whether  the  practice  is  well  founded. 

And  accordingly  it  is  held  that,  to  instructions 
given  on  the  I'cquest  of  the  opposite  party,  it  is  suffi- 
cient to  except  to  "  each  and  all "  thereof."^ 

In  Maryland,  also,  where  a  variety  of  distinct 
prayers  is  wholly  refused  by  the  court,  and  the  party 
excepts  to  the  refusal  collectively,  the  court  will  con- 
sider the  refusal  in  the  same  way  as  if  each  question 
raised  had  been  separately  determined,  and  formed 
the  subject  of  an  independent  exception." 

But  the  general  rule  is,  doubtless,  otherwise,  as 
stated  in  Alabama,  that  where  several  objections  are 
grouped  together  into  one  exception,  they  will  not  be 
considered  distributively,  but  conjointly,  and  all  the 
objections  must  be  well  taken,  or  the  whole  exception 
must  be  overruled.'" 

§  845.  Instructions  excepted  to  are  to  be  consid- 
ered in  connection  with,  and  construed  by,  the  evi- 
dence, which  must  therefore  usually  be  set  out  in  the 
bill.''  This  is  needful,  also,  to  show  that  an  instruc- 
tion refused  was  not  abstract,  and  so  properly  rejected, 
as  having  no  application  to  the  case.'~ 

But  it  has  been  held  that  the  evidence  need  not  be 
set  out  where  an  instruction  upon  legal  principles  is 
pertinent  to  the  issues  and  averments  of  the  declara- 
tion.'''   And  when    instructions   actually   given   are 

^  McCreery  v.   Everding,   44         ^^  Gcrrish  v.   Manuf.   Co.    10 

Cal.  246.  Foster  (N.  H.)  478. 

^  Bank   V.   Bank,    10   Gill   &          ^^  Crov^^inger    v.    Lessee,    15 

John.  347.  Ohio,   156. 

^^  Ivey  V.  Coleman,   42   Ala.  ^^  Powers  v.  Bridges,  1  Iowa 

416.  (Greene)  235. 


Chap.  XIV.]     EXCEPTIONS    TO    ESTSTKUCTIOXS.  619 

excepted  to  on  the  gi'ound  of  a  mistake  of  law,  it  is 
held,  in  Ahibama,  that  the  evidence  need  not  be  set 
out.  ^^  And  also,  where  an  erroneous  affirmative 
charge  is  given  by  the  court,  either  of  its  own  motion 
or  at  the  instance  of  the  opposite  party,  in  which 
case,  if  a  plaintiif  desires  to  parry  the  effect  of  the 
error,  he  should  cause  the  proof  to  be  wholly  set  out, 
so  as  to  show  that  the  charge  was  abstract,  or  not 
misleading,  or  for  some  other  cause  was  rendered 
imiocuous;  otherwise  injury  will  be  presumed  from 
the  error. '^ 

§  846.  In  general,  however,  instructions  are  pre- 
sumed correct  or  harmless,  unless  the  error  is  affirma- 
tively shown;  and  in  the  same  state  (Alabama)  as 
well  as  elsewhere;  so  that  an  affirmative  charge  of 
the  court  which  upon  any  supposable  state  of  facts 
would  be  correct,  will  be  presumed  to  have  been  jus- 
tified by  the  evidence,  unless  such  pi-esumption  is 
rebutted  by  the  record.^"  And  so  a  charge  asked  and 
refused  will  be  presumed  to  have  been  abstract,  unless 
the  contrary  is  affirmatively  shown  by  the  record.^^ 

And  although  an  instruction  would  be  erroneous 
unless  certain  evidence  had  been  given  on  the  trial, 
such  evidence  will  be  presumed  unless  the  party 
excepting  shows  by  his  bill  that  no  such  evidence  was 
given.^^  And  where  the  matter  is  merely  left  doubtful 
as  to  whether  an  instruction  is  correct  or  not,  the  pre- 
sumption of  correctness  will  usually  prevail.^^ 

14  Thorp  V.  State,  15  Ala.  749.  ^^  Tubeville  v.  State,  ibid.  715. 

15  Charter  w.Chandton,  21  Ala.  ^^  Day?;.  Raguet,  U  Min.  274. 
90.  19  Lively  v.  Ballard,  2  W.  Va. 

16  Tempe  v.  State,  40  Ala.  351.  496. 


620  BILLS   OF   EXCEPTION.  [Part  III. 

And  if,  on  any  probable  state  of  fiicts,  the  instruc- 
tions would  be  correct,  the  existence  of  such  facts 
will  be  presumed;  although  if,  on  any  and  every 
state  of  facts,  the  instruction  would  be  wrong,  the 
presumption  will  be  reversed,  and  the  error  will  be 
adjudged  misleading,  if  they  seem  calculated  to  mis- 
lead."'" And  where  it  is  doubtful  whether  the  point 
to  which  an  exception  applies  is  essential  to  the  de- 
cision of  the  case,  and  what  view  the  jury  took  of  the 
evidence,  if  the  instructions  or  rulings  of  the  court 
are  defective,  the  exception  will  be  sustained,  and  a 
new  trial  granted.-^ 

§  847.  It  is  not  the  province  of  a  court  to  moot 
points  of  law  or  give  opinions  on  abstract  proposi- 
tions, and  therefore  a  bill  must  show  the  materiality 
or  ap])lication  of  instructions  asked  and  refused.^ 
And  in  a  case  where  a  judge  refused  an  instruction 
framed  on  the  assumption  that  a  particular  rule  of 
law  was  applicable  to  the  case,  which  rule  the  judge 
had  previously  instructed  the  jury  was  not  applicable, 
without  any  objection  being  offered,  while  he  in- 
structed also  that  another  rule  was  applicable,  whereas, 
in  reality,  either  rule  was  applicable  to  the  evidence, 
as  stated  in  the  bill,  which,  however,  did  not  profess 
to  set  out  all  the  evidence,  the  exception  was  over- 
ruled because  it  did  not  distinctly  appear  that  the 
instructions  asked  for  were  pertinent  or  api3ro]iriate.'^ 

§  848.  If  an  exception  is  taken  to  the  refusal  of  a 
requested  instruction,  and  it  does  not  appear  what  in- 

20  Murray  I?.  Fry,  6  Ind.  371.         22  g^ans    v.   Lohr,    2   Scam. 

21  Ilowe  V  Newmarch,  12  Al-     (IH.)  511. 

len,  57.  23  Milk  v.  R.  R.  99  Mass.  167. 


Chap.  XIV.]     EXCEPTIOI^S    TO   INSTRUCTIONS.  621 

structions  were  actually  given,  the  exception  will  be 
overruled,  unless  the  requested  instruction  presented 
the  true  rule  of  law  applicable,  and  lacked  no  qualifi- 
cation whatever;  but  it  is  otherwise  if  the  refusal  of 
the  specified  instructions  necessarily  implies  that  a 
contrary  and  incorrect  rule  was  given,  or  that  the  jury 
were  left  without  instructions  on  the  point;  or  where 
the  requested  instructions  cover  the  whole  principle, 
and  it  is  clear  that  the  case  required  that  the  law 
should  thus  be  stated,  although  only  the  requests  ap- 
pear in  the  record.'*  And  where  requests  are  not 
complied  with,  a  refusal  is  implied.'^ 

§  849.  An  exception  to  a  term  or  phrase  in  a 
charge,  where  the  whole  tenor  is  correct,  cannot  be 
sustained;  as,  for  example,  to  the  term  "peaceable," 
where  the  charge  was  that  a  possession  for  twenty 
years,  under  the  statute  of  limitations,  must  be  open, 
notorious,  uninterrupted,  and  peaceable,  when  there 
was  no  claim  that  there  had  ever  been  any  disturbance 
of  the  possessor.^'' 

And  so  as  to  a  part  of  an  instruction  in  itself  errone- 
ous, but  which  is,  when  connected  with  the  remainder, 
not  misleading,  and  other  instructions  on  the  point  are 
clearly  proper,  no  exception  will  be  sustained.^'  And 
if  the  parts  taken  as  a  whole  are  not  erroneous,  par- 
tial error,  annulled  by  the  general  correctness,  is  not 
a  proper  subject  of  exception.^*  And  a  court  will  look 

^  Marshall  v.  Oakes,  51  Me.  ^7  Oxnard    v.    Swan  ton,     39 

808.  Me.  125. 

-^  Emerson    v.   Dclamater,    2  ^  Jackman  v.  Bowker,  1  Met. 

Blatch.  1.  (Mass.)  236. 

^  Rayner    v.     Timerson,    51 
Barb.  531. 


622  BILLS   OF   EXCEPTION.  [Vart  IIL 

into  the  whole  record  in  estimating  the  efTcct  of  in- 
structions givcn.^'' 

§  850.  In  Massachusetts,  nnder  the  statute  of  1840, 
the  rulings  of  the  Court  of  Common  Pleas  on  the  ad- 
missibility of  evidence,  and  their  instructions  to  the 
jury  on  the  trial  of  an  issue  joined  on  a  plea  in  abate- 
ment, are  held  not  exceptionable.'"^  But,  by  statute, 
the  instructions  and  rulings  of  that  court  may  be  re- 
viewed on  a  bill  of  exceptions,  in  regard  to  the  assess- 
ment of  damages  in  the  taking  of  land  for  Avidening 
a  street.''' 

§  851.  It  is  held  that,  where  an  instruction  is  ex- 
cepted to  on  the  ground  that  it  assumes  a  fact  not 
proved,  the  bill  of  exceptions  needs  not  ])oint  out 
specifically  wherein  it  makes  such  assumption,  as  this 
particularity,  if  required,  might  often  lead  to  a  dis- 
cussion or  argument  upon  instructions  as  they  were 
given,  instead  of  what  the  law  enjoins  —  a  simple  ex- 
ception, and  a  plain  statement  of  the  grounds  upon 
which  it  w^as  made.''- 

§  852.  Where  a  charge,  incorporated  into  the  bill 
of  exceptions,  recites  facts,  the  recital  is  to  be  taken 
as  true,  in  like  manner,  as  the  entire  bill  is  held  to  im- 
port absolute  verity.^' 

§  853.  Where,  on  the  margin  of  an  instruction  em- 
bodied in  the  record,  the  word  "refused"  was  WTitten, 
but  the  bill  of  exceptions  recited  that  the  instruction 
was  given,  it  was  held  that  the  recital  must  prevail.'^* 

29  Gano   V.  Samuel,  14   Ohio,  ^'^  Davis  V.  Strohm,  It   Iowa, 

592.  426. 

^^  Bartol  V.  Stanwood,  7  Cush.          ^  Vernon  v.   East  Hartford, 

115.  3  Conn.  482. 

SI  Parks  V.  City  of  Boston,  15         ^4  Keithler  v.  State,  10  S.  & 

Pick.  198.  M.  (Miss.)  194. 


Chap.  XV.]      OTHER   EXCEPTIONABLE    MATTERS.  G23 

This  is  on  the  general  principle  stated  in  a  former 
chapter,  that  where  a  recital  in  the  bill  of  exceptions 
contradicts  the  record,  the  former  will  supersede  the 
latter  in  that  particular,  because  the  signature  of  the 
judge  imports  absolute  verity. 


CIIAPTEK   XV. 
Other  Exceptionable  Matters. 

§  854.  The  genet-al  principle  in  regard  to  the  sub- 
jects of  exception  is,  that  the  matter  or  decision  ex- 
cepted to  must  have  arisen  during  the  progress  of  the 
cause  and  before  final  judgment.^  Any  decision  or 
declaration  by  the  court  upon  the  law  of  the  case, 
made  in  the  progress  of  the  cause,  and  by  which  the 
jury  are  influenced  and  the  counsel  controlled,  is  con- 
sidered as  coming  within  the  scope  and  meaning  of 
the  term  instructions  to  which  exceptions  may  be 
taken.'  An  appellate  court,  however,  does  not  sit  to 
settle  facts,  and  will  only  so  far  inquire  into  an  issue 
of  fact  tried  in  the  court  below,  as  to  ascertain  whether 
the  evidence  had  a  legal  tendency  to  support  the  find- 
ing of  the  court  below.' 

§  855.  Rulings  on  motions  —  except  such  as  are 
within  the  discretion  of  the  court  merely  —  are  a 
proper  subject  of  exceptions;  and  in  no  case  are  they 

^  Swafford     V.    Dovenor,     1  ^  Lyman    v.  Tarbell,    30   Vt. 

Scam.  (111. j  165.  463;   Stevens  v.   Hewitt,  ibid. 

2  Sowerwein  v.  Jones,  7  Gill.  26^. 
&  Johns.  (Md.)  335. 


624  BILLS   OF   EXCEPTIOIT.  [Part  III. 

a  part  of  the  record,  unless  brought  in  by  bill.*  Thus, 
on  an  order  dissolving  an  injunction,  the  bill  must 
show  on  what  grounds  the  court  acted  therein,  or  the 
order  cannot  be  reviewed.^  And  where  a  change  of 
venue  is  granted,  the  grounds  of  objection  to  the 
charge  must  be  set  out  by  the  exceptor.*^  And  where 
there  is  a  motion  to  transfer  a  cause  for  want  of  juris- 
diction, the  motion  must  be  made  a  part  of  the  record 
by  means  of  a  bill  of  exceptions/ 

So,  where  there  was  an  appeal  from  the  judgment 
of  the  Circuit  Court  in  an  action  on  a  promissory 
note,  and  it  was  assigned  for  error  that  the  court  sus- 
tained a  motion  of  the  plaintiff  to  strike  from  the  files 
the  plea  of  the  defendant  denying  the  execution  of 
the  note,  the  Supreme  Court  refused  to  consider  the 
matter,  because  the  bill  of  exceptions  did  not  show 
that  any  such  motion  was  made,  or  any  rulings  con- 
cerning it.^  And  where  a  bill  showed  that  there  had 
been  a  motion  to  quash  a  writ  of  certiorari^  but  did 
not  show  any  rulings  upon  it  or  exceptions  taken,  it 
was  disregarded  for  the  same  reason.^ 

A  decision  refusing  a  continuance  in  a  criminal 
case  is  reviewable  on  a  bill  of  exceptions.^"  But,  of 
course,  in  order  to  prevail,  the  bill  must  show  that 
the  affidavit  set  forth  proper  grounds  for  a  continu- 
ance, as  that  a  material  witness  is  absent,  and  that 
due  diligence  has  been  employed  to  secure  the  testi- 

*  Cook     V.     Bank,     1     Iowa  ^  Gaddy  v.  McCleane,  59  111. 

(Greene)  44T.  182. 

5  Gould  V.  Uouse,  40  Ind.  403.  »  Thompson  v.  White,  64  111. 

^  Baker    v.    Simmons,    ibid.  315. 

442.  ^°  People  v.  Ashnaner,  47  Cal. 

'  Lane  v.  Taylor,  ibid.  495.  98. 


CuAP.  XV.]     OTHER  EXCEPTIONABLE   MATTERS.  625 

mony,  &c.  And  the  affidavit  must  be  copied  into  the 
bill  as  in  other  cases,  or  in  some  other  way  clearly 
identified  as  having  been  read  on  the  hearing  of  the 
motion.'^ 

In  California,  an  order  setting  aside  a  default  may 
be  excepted  to;^'  but  I  think  the  general  rule  is 
otherwise,  this  being  regarded  a  purely  discretionary 
matter. 

A  motion  to  quash  an  execution  for  issuing  at  the 
wrong  time,  can  be  reviewed,  and  the  bill  should  em- 
body the  execution.^^  And  in  a  motion  to  quash  a 
forthcoming  bond  and  execution  thereon,  the  grounds 
of  the  motion  must  a])pear,  and  also  the  execution  and 
bond  be  set  out ;  and  if  the  ground  is  at  variance  be- 
tween the  original  bond  and  the  judgment,  or  like 
defect,  the  judgment  also  must  be  inserted  in  the  bill.^^ 

The  proof,  whether  oral  or  otherwise,  which  is  taken 
on  a  motion  to  quash  an  execution,  or  set  aside  a  sale 
under  it,  should  be  set  out  in  a  bill.^^ 

§  856.  The  only  judgment  which  can  be  rendered 
on  a  petition  for  review  is,  that  a  writ  be  or  be  not 
granted;  and  this,  therefore,  is  a  final  judgment,  to 
which  an  exception  will  lie  on  proper  grounds  shown.** 

§  857.  On  exceptions  to  the  rulings  of  the  lower 
court  on  the  taxation  of  costs,  no  question  is  open 
which  is  not  stated  in  the  bill  of  exceptions,  even 

^^  People    V.    Weaver,    ibid.  (Miss.)  580  ;  Merrett  v.  Vance, 

106.  ibid.  498. 

^2  Grazidal    v.    Bastauchure,  ^^  Nesbitt  v.  Dallam,    T  Gill, 

ibid.  1G7.  &  Johns.  (Md.)  494. 

^^  Davis  V.  Baldwin,  1  How.  ^^  Davenport    v.    Holland,  2 

(Miss.)  550.  Gush.  11. 

^*  Huston  V.  Ilayter,  6  How. 

40 


626  BELLS    OF   EXCEPTI0:N^.  [Part  III. 

though  it  should  appear  m  the  bill  of  costs  referred 
to  in  the  exceptions.^^ 

§  858.  In  regard  to  masters',  auditors',  and  referees' 
reports,  an  exception  to  the  finding  of  a  master  upon 
the  facts  before  him,  is  to  be  regarded  only  so  far  as 
it  is  supported  by  the  statements  of  the  master,  or  the 
evidence  reported  by  him,^^  because  a  court  does  not 
investigate  the  items  of  an  account,  nor  review  the 
whole  mass  of  testimony  taken  before  the  master.^^ 

And  where  a  cause  is  referred  by  consent,  the  find- 
ings of  the  referee  upon  matters  of  fact  can  only  be 
reviewed  when  it  is  so  clearly  against  evidence,  or 
without  evidence,  as  to  create  a  reasonable  apprehen- 
sion of  his  bias,  partiality,  or  mistake;  and  it  is  not 
enough  that  the  court  see  such  reason  to  doubt  the 
correctness  of  the  finding  that  they  would  have  sus- 
tained the  report  of  the  referee  if  he  had  come  to  an 
opposite  conclusion,  or  think  that  they  should  upon 
the  evidence  have  found  otherwise.^'' 

In  Maine,  by  the  Revised  Statutes  and  amendatory 
act  of  1845,  either  party  may  file  exceptions  to  any 
decision  of  the  District  Court  in  accepting,  rejecting, 
or  recommitting  a  report  of  referees.^'  But  excep- 
tions may  only  be  made  to  such  action  of  the  District 
Court,  and  not  directly  to  the  report  of  the  referee 
itself,  whose  judgment  is  final,  unless  in  cases  of  cor- 
ruption, gross  partiality,  or  evident  excess  of  power .^ 

1'  Richardson    v.    Curtis,    2  ^  Brooks  v.    Christopher,    6 

Gray,  497.  Duer,  216. 

^^  Joues  V.  Keen,  115  Mass.  ^^  Lathrop  v.  Arnold,  25  Me. 

181.  136. 

^^  Earding    v.    Handy,     11  ^2  Black  v.   Hickey,  48  Me. 

Wheat.  (U.  S.)  126.  646. 


Chap.  XV.]      OTHER   EXCEPTIOI^ABLE    MATTERS.  627 

In  Georgia,  where  an  exception  to  an  auditor's 
report,  to  whom  a  case  has  been  submitted,  directly 
contradicts  the  report,  the  former  should  be  supported 
by  proof  in  the  court  below,^'  and  the  matter  may  be 
tried  by  a  jury,  and  evidence  adduced  in  addition  to 
that  heard  before  the  auditor.^*  And  as  in  other  cases, 
the  rulings  of  the  court  therein  are  subject  to  exception. 

So  in  i^orth  Carolina,  a  jury  may  try  exceptions  to 
a  referee's  report,  where  the  reference  is  compulsory, 
but  not  where  it  is  by  consent;  for  this  consent  waives 
trial  b}^  ji^iiy-^^  Exceptions  may  be  taken  on  the 
ground  that  the  referee  adopted  a  former  settlement 
as  the  foundation  of  his  report;  or  that  he  stated  no 
evidence  upon  which  he  found  the  facts  reported;  or 
that  he  filed  no  vouchers  or  receipts,  and  referred  to 
none  authorizing  the  disbursements  reported;  or 
that  he  did  not  state  when  certain  judgments  were 
obtained.^" 

§  859.  "Wliere  there  is  a  general  verdict  of  guilty, 
it  is  within  the  discretion  of  a  judge  whether  inquiry 
shall  be  made  of  the  jury  as  to  the  grounds  or  counts 
of  the  indictment  on  which  the  verdict  is  based;  and, 
if  no  such  inquiry  is  made,  the  general  verdict  will  be 
applied  to  each  count.  But  if  the  inquiry  is  made, 
and  elicits  the  fact  that  the  jury  had  not  passed  upon 
the  counts  separately,  it  is  error  in  the  court  to  cause 
the  verdict  to  be  recorded,  and  exception  may  be  taken 
thereto. "^^ 

23  Camp  V.  Mayer,  47  Ga.  415.  ^6  Wilson  v.  Abrams,  70  N.  C. 

^*  Roberts   v.  Summers,  ibid.  324. 

434.  27  Commonw.  v.   Carey,  103 

2^  Grren    t».    Castlebury,     70  Mass.  216. 
N.  C.  20. 


628  BILLS    OJ^    EXCEPTION".  [Part  III. 

In  Alabama,  it  is  held  that,  where  a  bill  of  excep- 
tions in  a  criminal  case  purports  to  set  out  all  the 
evidence,  and  does  not  show  that  the  venue  was 
proved,  but  exception  was  taken  to  the  conviction  and 
sentence,  the  judgment  will  be  reversed  on  error  on 
account  of  the  defect  in  the  evidence,  even  though  no 
specific  charge  was  given  or  asked  in  regard  to  the 
proof  of  venue.^^ 

In  Florida,  under  the  statute,  even  where  a  defend- 
ant in  a  criminal  action  introduces  no  testimony  on 
the  trial,  he  is  entitled  to  the  concluding  argument 
before  the  jury,  and  the  statute  is  held  not  to  be 
directory,  but  mandatory,  in  its  character;  and,  if 
the  court  deny  the  right,  exceptions  will  be  sus- 
tained.^^ 

§  860.  The  answer  made  by  a  juror,  when  polled,  is 
a  part  of  the  proceedings  of  the  court,  and  should  be 
shown  by  a  bill  of  exceptions.''" 

And  the  challenge  of  a  juror,  on  the  ground  that 
he  did  not  understand  the  English  language,  cannot 
be  considered,  except  when  shown  by  a  bill  of  ex- 
ceptions.^^ 

And  where  exception  is  taken  to  the  refusal  of  a 
judge  to  sustain  a  challenge  of  a  juror  for  cause,  the 
bill  must  show  that  no  question  of  fact,  but  only  of 
law  purely,  was  the  ground  of  the  decision,^-  and  so 
must  set  forth  the  cause  of  the  challenge.^'^ 

28  Frank  v.  State,  40  Ala.  9.  ^i  Thomas  v.  Zushlay,  25  Tex. 
(Walker,  Ch.  J.,  disseuting.)  (Supp.)  228. 

29  Heffson  v.  State,  8  Fla.  ^~  State  v.  Bunger,  14  La. 
V3.  An.  461. 

3°  Meddler  v.  State  ex  rel,  ^  State  v.  Dove,  10  Ire. 
Punn,  26  Ind.  171.  (N.  C.)469. 


Chap.  XV.]      OTHER   EXCEPTIOI^ABLE    MATTERS.  629 

§  861.  The  granting  of  a  nonsuit  is  a  question  of 
law,  and  can  be  brought  up  for  review  without  a 
motion  for  a  new  trial. ^* 

The  overruling  of  a  judgment  on  a  special  finding 
can  be  presented  in  the  Supreme  Court,  where  the 
motion  states  the  ground  of  the  application,  without 
a  bill  of  exceptions,  the  motion,  in  this  case,  being 
regarded  as  a  part  of  the  record,  contrary  to  the  gen- 
eral rule.     So  held  in  Indian  a. "^^ 

In  Georgia,  it  is  held  that  an  exception  to  a  judg- 
ment need  not  specify  the  objections  to  the  judgment, 
but  only  object,  in  general  terms,  to  the  entry  thereof, 
on  a  demurrer ;  "^^  which  is  the  general  rule,  doubtless, 
where  an  exception  is  regarded  as  needful  at  all. 

§  862.  As  to  the  pleadings  in  a  cause,  the  rulings 
concerning  them  must  be  distinctly  set  out.  And 
directly ;  for  questions  concerning  the  sufficiency  of  a 
declaration  cannot  be  considered  as  an  appeal  from  a 
decision  denying  a  new  trial.^^  The  pleadings  and  judg- 
ment are  in  the  record,  and  ought  not  to  be  set  out  in  a 
bill.^^  But  in  Indiana,  it  is  held  that  a  bill  of  excep- 
tions is  necessary,  to  present  for  review  the  striking 
out  of  a  paragraph  in  an  answer,^^  or  of  a  complaint.^" 
And  the  reason  given  is  that  the  striking  out  takes  it 
out  of  the  record,  and  it  can  only  be  brought  into  the 
record  therefore  by  a  bill,  —  a  reason  that  looks 
somewhat  rigidly  technical. 

^'^  Cravens  v.  Dewey,  13  Cal.  ^^  Whitfield  v.  Westbrook,  40 

40.  Miss.  315. 

^^  Campbell  v.  Dutch,  36  Ind.  ^^  Ammerman   v.  Crosby,   26 

604.  Ind.  452. 

^  Barksdale    v.    Brown,    16  ^^  Reeves  v.  Plough,  41    Ind. 

Ga.  97.  204. 

37  Jacks  V.  Buell,  47  Cal.  162. 


630  BILLS    OF   EXCEPTION.  [Part  IIL 

§  863.  Where  an  exception  has  been  tried  and 
overruled,  the  same  questions  involved  in  the  excep- 
tions cannot  be  again  brought  up  in  another  form  in 
the  same  court;  as,  for  example,  by  motion  to  sus- 
pend further  proceedings  in  the  cause /^ 

§  864.  A  court  having  power  to  punish  for  con- 
tempt is  the  exclusive  judge  whether  misbehavior  in 
court  amounts  to  contempt  or  not,  and  its  decision  is 
not  reviewable ;  ^^  unless  where  the  question  of  juris- 
diction is  raised  and  adjudicated  upon.*^ 

§  865.  Issues  and  questions  of  law,  in  habeas  cor- 
pus proceedings,  in  an  inferior  court,  may  be  reviewed 
on  exceptions.^* 

Also  an  order  made  at  chambers  dissolving  an  in- 
junction.*^ And  an  order  improperly  transferring  a 
cause  to  the  chancery  docket.*^ 

§  866.  In  Xew  Jersey,  a  bill  of  exceptions  cannot 
be  taken  in  case  of  an  appeal  to  the  Common  Pleas 
from  a  justice's  court,  but  the  court  may  certify  the 
case  to  the  Supei'ior  Court.*'  But  this  is  evidently 
exceptional,  and  not  the  general  rule.*^ 

And  in  Arkansas,  it  is  held  no  part  of  the  office  of 
a  bill  of  exceptions,  to  set  out  the  abandonment  of  a 
count  in  the  declaration,  this  being  in  the  record ;  and 
so,  if  the  record  does  not  show  it,  a  recital  in  the  bill 
of  exceptions  to  that  effect  is  of  no  avail.*'^ 

41  Miller   v.   Dupuy,    19    La.  ^eparshallv.  Moody,24  Iowa, 

An.  166.  314. 

^^  In  re  Cooper,  32  Vt.  254.  ■*'  Boston  v.  Morris,  1  Dutch, 

43  R.  R.  V.  R.  R.  49  Me.  392.  173. 

^  In  re  Cooper,  32  Vt.  254.  ^8  Commonw.  v.  Doty,  3  Met. 

^  Moore  v.  Ferrell,  1  Kelley  (Mass.)  20. 

(Ga.)  6.  49  State  v.  Jennings,  for  use. 

(Ark.)  448. 


Chap.  XVI  ]  MODE    A2?D    TIME,  ETC.  631 

§  867.  Although  it  appears  from  a  bill  of  excep- 
tions that  goods  sued  for  are  appropriate  articles  for 
use  as  household  furniture,  yet  if  it  does  not  also 
appear  that  the  plaintiff  had  actually  used  them,  or 
intended  to  use  them  thus,  the  Supreme  Court  will 
not  i^resume  that  they  were  exempt  from  execution 
or  attachment.^" 


CHAPTER  XYI. 

Mode  and  Time  oe  taking  Exceptions. 

§  868.  In  theory,  a  bill  of  exceptions  is  wholly 
drawn  up  and  perfected  at  the  trial ;  but  in  practice, 
this  would  often  be  exceedingl}''  inconvenient,  and 
so  the  exception  may  be  noted  at  the  time  the  mat- 
ter arises,  and  afterwards  be  reduced  to  form  and 
signed.  But  in  the  United  States  Courts,  it  is  then 
signed  nunc  pro  tunc,  and  the  bill  must  purport  to 
have  been  actually  reduced  to  form  and  signed  during 
the  trial ;  and  where  this  is  not  the  case,  it  is  a  fatal 
error.  ^ 

§  869.  There  are  some  variations  in  the  practice  of 
different  courts  in  regard  to  the  time  of  taking  excep- 
tions. They  are,  however,  mostly  modifications  of  the 
principle  that  exceptions  must  be  taken  and  noted  at 
the  time  the  decision  is  made  on  which  they  are  based. 
As  already  intimated  above,  an  exception  to  a  ruling 
must  be  nominally  perfected  at  the  time  and  actually 

^  Bourne  v.  Merritt,   22  Vt.  ^  Walton   v.    U.  S.  9  Wheat. 

429.  651. 


632  BILLS    OF   EXCEPTION^.  [Part  III. 


noted;  and  a  bill  must  set  out  the  ruling  and  allege 
that  the  party  "  then  and  there  excepted."  '^- 

And  the  principle  in  these  courts  is  applied  to  ex- 
ceptions to  the  rulings  of  a  master;^ 

It  will  be  more  convenient,  and  have  the  advantage 
of  brevity,  rather  to  note  the  variations  from  the  gen- 
eral rule  than  to  set  forth  all  the  confirmatory  decis- 
ions upon  the  matter. 

As  to  evidence,  it  must  be  objected  to  when  offered, 
and  not  after  it  is  admitted.  And  so  in  general  with 
any  ruling.  "  At  the  time "  means  on  the  very  in- 
stant. As  to  instructions,  the  exception  need  not  be 
taken  before  the  reading  thereof  to  the  jury.*  But 
while  usually  exceptions  must  be  taken  to  a  charge 
before  the  jury  retires,  yet,  in  Vermont,  it  has  been 
held  that  such  a  rule  is  one  of  practice  merely  in  the 
lower  court,  and  is  not  to  be  regarded  in  the  Supreme 
Court,  which,  therefore,  is  bound  to  revise  all  ques- 
tions made  in  regard  to  such  charge,  whether  it  was 
at  the  time  excepted  to  or  not,  unless,  perhaps,  in 
regard  to  some  unintentional  omission  of  the  court 
to  charge  upon  a  point  in  the  case,  which  would  have 
been  done  if  the  matter  had  been  brought  to  the  at- 
tention of  the  court  at  the  proper  time.^  And  yet  the 
case  in  which  this  was  held  has  been  impliedly  over- 
ruled by  a  later  decision,  which,  however,  does  not 
notice  the  former."  And,  in  Massachusetts,  it  has 
been  held  that,  where  an  instruction  obviously  ex- 

2  Lessee  v.  Bank  of  Indiana,  590  (overruling  Longv.  Hughes, 
1  Wall.  592.  1  Duvall,  387). 

3  Troy   Iron,  &c,,  Factory  v.         ^  Buck  v.  Squiers,  23  Vt.  498, 
Corning,  f  Blatchf.  328.  ^  g^ate  v.  Clark,  37  Vt.  472. 

*  Paston   V.  Exec'r,    8   Bush. 


Chap    XVI.]  MODE   ANT>    TIME,  ETC.  633 

tends  to  the  whole  ground  of  defence,  and  is  not  of 
a  casual  or  incidental  nature,  a  defendant  is  not  in 
default  for  not  calling  attention  to  its  inaccuracy 
before  the  jury  retired/  But  this,  also,  has  been 
changed  by  statute  of  1863. 

In  California,  as  the  practice  act  does  not  fix  the 
time  of  taking  exceptions  to  the  charge  of  the  court, 
it  is  held  that,  if  an  exception  is  taken  after  the  jury 
retires,  and  before  verdict  is  rendered,  it  is  within  the 
discretion  of  the  court  to  allow  it;  and  the  Supreme 
Court  will  not  interfere  with  the  exercise  of  that  dis- 
cretion in  any  way.^ 

In  Georgia,  exceptions  may  be  taken  and  presented 
at  any  time  within  thirty  days,  and  no  notice  of  such 
intention  needs  be  given .^  But  exceptions  cannot 
be  taken  at  a  subsequent  term  to  interlocutory  or- 

§  870.  In  Pennsylvania,  an  exception  is  waived  if 
not  reduced  to  writing  during  the  trial,  though  an 
exception  to  a  charge  may  be  taken  at  any  time  be- 
fore the  verdict  is  rendered."     And  so  in  lowa.^^ 

§  871.  In  Illinois,  the  arrest  of  a  counsel  pending 
a  criminal  trial  is  held  not  to  avail  the  defendant  in 
excuse  for  not  taking  and  perfecting  exceptions.^^ 

§  872.   Where  the  court  tries  a  cause  without  the 

7  Esty  V.  Wilmot,  15  Gray,  "  Wheeler  v.  Winn,  63  Pa. 
ItO.  St.  122. 

8  St.  John  V.  Kidd,  26  Cal.  ^2  Qlaggett  v.  Gray,  1  Clarke, 
263.  19. 

9  Carey  v.  McDougald,  4  Ga.  i3  O'Hare  v.  People,  40  IlL 
610.  534. 

i<>  Pettis  V.  Campbell,  41  Ga. 
697. 


634  BILLS    OF   EXCEPTION".  [Pakt  III. 

intervention  of  a  jury,  exceptions  must  be  taken  at 
the  time,'*  before  the  final  judgment.^^ 

§  873.  In  Maine,  it  is  held  too  late  to  except  to  the 
submission  of  improper  matters  to  commissioners  of 
partition,  at  the  rendering  of  their  report  at  a  subse- 
quent term.^^ 

But,  of  course,  exceptions  to  the  report  itself  can 
only  be  made  after  the  coming  in  thereof,  and  when 
it  is  presented  for  allowance  and  confirmation.'" 

§  874.  In  Maine,  a  case  arose  in  regard  to  the  tax- 
ation of  costs,  and  the  court  held  that  where  a  final 
judgment  has  been  ended,  the  parties  are  out  of  court, 
and  the  judicial  power  of  the  court  ceases,  nothing 
remaining  but  to  tax  the  costs,  which  requires  only 
the  exercise  of  ministerial  powers,  since  costs  are  only 
incidental  to  the  judgment.  Yet  if  the  costs  are  taxed 
at  the  term,  and  an  adjudication  thereon  is  had,  either 
party  may  except  to  the  rulings  thereon,  although  it 
is  otherwise  where,  on  appeal  from  a  clerk's  taxation, 
the  question  is  adjudicated  by  one  of  the  judges  in 
vacation,  or  at  a  subsequent  term.  And  it  is  not 
within  the  discretion  of  a  judge  at  Nisi  j^rius  to  order 
the  action  brought  forward  and  entered  on  the  docket 
of  a  subsequent  term,  not  for  the  purpose  of  amend- 
ing the  record,  but  in  effect  to  nullify  it,  so  that  a 
negligent  party  may  have  an  opportunity  to  except  to 
the  decision  in  regard  to  the  taxation  of  costs.'^ 

And,  in  general,  questions  arising  in  a  continued 

14  Parsons  v.  Evans,  11  111.  "  Smith  v.  Hurd,  8  S.  &  M. 
238.  (Miss.)  682. 

15  Kilgore  v.  Bowie,  9  Mo.  ^^  Shepherd  v.  Rand,  48  Me. 
291.  244. 

16  Allen  V.  Hall,  50  Mo.  253. 


Chap.  XVI.]  MODE   AKD    TIINIE,  ETC.  635 

case,  at  the  term  during  which  exceptions  are  taken, 
can  alone  be  presented.  Exceptions  cannot  reach  the 
proceedings  of  a  former  term.^^ 

§  875.  An  exception  must  be  taken  by  one  of  the 
parties  to  the  cause;  and  an  amicus  curice  cannot  take 
a  vahd  exception.^" 

§  876.  There  needs  not  be  a  separate  bill  to  each 
exception.  One  bill  at  the  conclusion  can  properly 
contain  all  the  exceptions  taken  during  the  trial.'^ 

§  877.  It  must  appear  when  the  exceptions  were 
taken.  And  so,  where  a  record  contained  a  bill  of 
exceptions  signed  and  sealed  in  term  time,  and  also 
other  exceptions  without  date,  and  without  anything 
on  their  face  to  show  when  they  were  taken,  which 
were  entirely  disconnected  from  the  bill,  but  purported 
to  be  taken  "during  the  further  progress  of  the 
cause,"  these  were  rejected  as  forming  no  part  of  the 
record.~^  There  needs  not,  however,  be  an  explicit 
averment  that  the  exceptions  were  taken  at  the  time. 
If  the  fact  appears  from  the  whole  record,  it  is  suffi- 
cient.^^ And  so,  in  Indiana,  when  the  court  decides 
against  a  party  on  demurrer,  he  may  except  to  the 
ruling ;  and  when  the  bill  states  that,  "  after  hearing 
the  argument,  the  court  sustains  the  demurrer,  to 
which  opinion  of  the  court  the  plaintiff  excepts,"  it  is 
held  a  sufficient  showing  that  the  exception  was  taken 
at  the  time.  However,  an  exception  is  not  necessary 
in  such  case,  but  merely  discretionary  with  the  party .^* 

19  Lathrop   v.   Page,   26  Me.  ^  Munap   v.   Bank,    20   Ala. 

120.  392. 

^  Darlington  v.  Warner,    14  ^^  Telegraph  Co.   v.  Hobson, 

Ind.  449.  15  Gratt.  (Va.)  122. 

21  Lane  v.  Kingsberry,  9  Mo.  ^4  Dace    v.    Oppenheim,     12 

402.  Ind.  537. 


636  BILLS   OF   EXCEPTIOIT.  [Part  IIL 

But  in  Illinois,  where  a  bill  was  filed  two  days  after 
judgment,  and  stated  in  the  conclusion  "  to  all  which 
opinions  of  the  court  the  plaintiff  excepts,"  it  was 
held  not  sufficiently  to  show  when  the  exception  was 
taken,  but  be  construed  to  refer  to  the  present  time 
when  the  bill  was  drawn.'' 

§  878.  It  is  a  sufficient  note  of  an  exception  taken 
on  the  trial  that  the  ruling  was  "  objected  to  "  at  the 
time  when  made.'*^° 

§  879.  A  motion  for  a  new  trial  waives  prior  ex- 
ceptions.^^ 


CHAPTER  xyn. 

Prepahin^g  Bllls  of  Exceptio:5t. 

§  880.  WheiST  exceptions  are  noted  during  the 
progress  of  the  trial,  they  are  to  be  brought  into  form 
afterwards,  settled  between  the  parties,  presented  to 
and  allowed  by  the  judge,  and  signed  and  sealed  by 
him,  as  a  general  rule.  We  will  notice  what  may  be 
needful  to  state  in  regard  to  these  several  particu- 
lars. 

And  the  first  inquiry  is  as  to  what  constitutes  a 
formal  bill. 

The  entries  on  a  judge's  minutes  are  only  regarded 
as  memoranda  of  exceptions,  and  so  not  in  themselves 
bills  of  exception,  but  only  evidences  of  the  right  of 

25  Gibbons  v.  Johnson,  3  ^7  '£\\iQ  y^  Warren,  35  Me. 
Scam.  61.  125. 

2s  Sackett  v.  McCord,  23  Ala. 
851. 


Chap.  XVII.]     PEEPAKIXG   BILLS    OP   EXCEPTIOT^.  637 

the  party  to  demand  a  bill  at  the  proper  time, — mem- 
oranda, in  fact,  for  preserving  the  rights  of  the  party 
in  case  the  verdict  should  be  against  him,  and  he 
shonld  wish  to  have  the  case  reviewed  in  an  appellate 
court.  The  bill  is  to  be  reduced  to  writing,  and 
signed  and  sealed  by  the  judge,  usually.^ 

And,  in  general,  a  bill  should  consist  of  a  single 
paper  or  papers,  connected  together  so  as  to  form  a 
connected  whole.  And  so  a  bill  which,  instead  of 
containing  any  testimony,  objections,  or  rulings  of 
the  court,  merely  states  that  these  matters  appear  by 
papers  on  file  which  are  to  be  annexed  thereto,  and 
form  a  part  of  the  bill,  is  not  in  proper  form ;  and  a 
judge  is  not  bound  to  sign  a  bill  in  such  a  condition 
that  documents  are  to  be  afterwards  attached  to  it 
before  it  can  become  a  complete  and  intelligible  docu- 
ment; ~  although  sometimes  blanks  may  be  filled  with 
specified  documents,  —  and  yet  even  this  is  not  held 
advisable.  To  make  a  paper  a  part  of  a  bill,  it  must 
be  incorporated  in  it,  attached  to  it,  or  filed  with  it, 
and  so  described  as  to  leave  no  doubt  of  its  identity; 
and  when  not  so  made  a  part  of  the  bill,  the  defect  is 
not  cured  by  a  journal  entry  directing  it  to  be  taken 
as  a  part  thereof.^  However,  a  more  lax  practice 
seems  to  prevail  in  Iowa,  where  a  cause  is  tried  by 
the  court  without  a  jury.  It  is  held  in  such  case,  that, 
if  the  finding  of  the  court  is  reduced  to  writing,  and 
all  the  testimony,  mth  the  exceptions  of  the  party 
complaining,  is  set  out  in  the  record,  and  all  together 

^  Poraeroy's  Lessee  v.  Bank,  ^  Busby  v.  Finn,  1  Ohio  St. 
1  Wall.  592.  409. 

2  State  ex  rel.  v.  Naggle,   16 
Wip.  333. 


638  BILLS    OP    EXCEPTI0:N'.  [Part  III. 

signed  by  the  judge  who  tried  tlie  cause,  tlie  paper  is 
to  be  treated  as  a  bill  of  exceptions.* 

An  agreed  statement  of  facts  cannot  be  made  a 
substitute,  but  it  becomes  a  part  of  the  record  only  by 
means  of  a  bill.''  And  when  matter  is  thus  sought  to 
be  brought  in,  or  by  affidavits  filed  in  the  cause,  or 
by  the  certificate  of  a  clerk,  it  must  be  disregarded 
by  the  Supreme  Court.*"'  And  so,  where  exceptions 
were  filed  to  an  award,  which  were  overruled  on  argu- 
ment, and  the  court  filed  an  opinion  setting  out  the 
facts,  it  was  held  that  the  opinion  and  facts  in  it  were 
not  part  of  the  record,  and  could  not  be  considered.'' 

But  in  ^N'ew  York,  under  the  code  of  1849,  no  bill 
is  necessary  on  a  case  made,  nor  need  there  be  any 
signing  or  sealing.^ 

§  881 .  As  to  the  time  of  preparing  bills,  the  rule 
is,  that,  unless  there  is  an  extension  of  time  by  leave 
of  the  court  and  consent  of  the  parties,  the  settling, 
signing,  and  sealing  must  be  completed  during  the 
term  at  which  the  trial  took  place,  and,  in  California, 
be  attached  to  the  judgment  roll.® 

In  Kentucky,  an  extension,  in  the  proper  sense, 
cannot  be  allowed  at  all;  and  if  time  is  allowed  for 
completing  a  bill  in  vacation,  it  is  held  to  be  extra- 
judicial, and  therefore  unauthorized  and  void.'^  And 
if  time  can  be  allowed  imtil  a  subsequent  term,  it  can 

*  Snell  V.  Kimmell,  8  Clarke,  ^  Zabriskie  v.  Smith,  1  Kernan, 

282.  481. 

5  Kennedy  v.  Merry,  11  Mo.  ^  More  v.    Delvalle,  38  Cal. 

214.  171. 

«  Young  V.  State,  23  Ohio  St.  ^^  Corley's  Ex'r  v.  Evans,  4 

578.  Bush.  410. 

7  Bartolett  v.  Dixon,  73  Pa. 
129. 


Chap.  XVII.]     PREPAHLN^G   BILLS    OF    EXCEPTION.  639 

only  be  done  by  withholding  the  judgment  or  sus- 
pending the  eiFect  thereof  after  it  is  rendered,  and 
thus  retaining  control  over  it  until  the  subsequent 
term,  and  then  making  it  a  judgment  of  the  subse- 
quent term.'^  And  so,  in  Tennessee,  it  is  imperative 
that  a  bill  must  be  perfected  at  the  trial  term,  and  the 
judge  has  no  power  to  extend  the  time  to  a  subse- 
quent term;  and  although  a  motion  for  a  new  trial 
may  be  made  and  continued  to  a  subsequent  term,  it 
does  not  carry  with  it  the  right  to  file  a  bill  of  excep- 
tions at  another  than  the  trial  term.'" 

In  Indiana,  where  a  defendant  in  a  criminal  case 
was  allowed  by  the  court  thirty  days  within  which  to 
file  his  bill,  which  period  extended  beyond  the  term, 
and  the  bill  accordingly  was  npt  filed  imtil  after  the 
expiration  of  the  term,  it  was  held  that,  in  the  ab- 
sence of  anything  to  the  contrary,  it  was  to  be  taken 
as  not  having  been  presented  to  the  judge  within  the 
time  allowed  by  law,  viz.,  within  such  time  as  the 
court  might  allow  during  the  term.^^  And  in  any 
case,  it  is  held  that  where  time  is  extended  beyond 
the  term  of  the  court,  there  must  appear  a  special 
reason  for  thus  exercising  the  authority  of  the  court.'* 
And  in  a  criminal  case,  time  cannot  be  extended  be- 
yond the  term.^^  And  in  other  cases,  where  time  is 
given  beyond  the  term  to  file  a  bill,  it  must  be  signed 
within  the  time  limited,  imless  the  signing  is  pre- 

11  Commonw.  v.  McCready,  ^^  Fitzainderv.  State,  30  Ind. 
2  Met.  3T6.  239. 

12  McGavock  v.  Puryear,  6  i*  McElfatrick  v.  Caffratb,  29 
Coldw.  (Tenn.)  34.  Ind.  38. 

^  Dunn  V.  State,  ibid.  259. 


640  BILLS    OF   EXCEPTI0:N".  [Part  III. 

vented  by  the  death  or  absence  of  the  judge.  And 
where  the  extended  time  has  expired,  the  power  of 
the  judge  over  the  record  is  at  an  end.'^' 

It  was  formerly  held  that  if  a  bill  be  signed  and 
sealed  within  the  time,  but  not  filed  until  afterwards,  it 
was  a  part  of  the  record,  and  could  not  be  stricken 
out  on  motion.^^  But  this  has  been  overruled  by  a 
subsequent  case.'®  The  filing,  however,  may  be  made 
to  appear  inferentially,  as  by  the  certificate  of  the 
clerk,  made  within  the  time  allowed  for  filing  the  bill, 
stating  that  the  record  is  a  full,  true,  and  complete 
transcript  of  all  the  proceedings  of  record,  and  of 
papers  on  file  in  his  office.'^  But  otherwise  the  tran- 
script must  show  affirmatively  that  the  bill  was  filed 
within  the  time  limited.^^ 

"Where  a  bill  states  on  its  face  that  it  is  filed  in 
time,  it  is  construed  to  mean  only  that  the  judge 
signed  it  in  time,  since  no  one  but  the  clerk  can  say 
when  it  was  filed.^' 

Leave  for  extending  time  must  be  obtained  within 
the  time  first  limited;  otherwise  the  record  is  to  be 
considered  beyond  the  reach  of  the  court,  unless  the 
opposite  party  be  brought  in  by  notice,  and  even  this 
method  is  held  to  be  doubtful  after  time  expired.^- 

Where  time  is  given  "  till  next  term,"  this  does  not 
include  any  part  of  the  next  term;  and  where,  under 

1^  Vanness   v.  Bradley,  ibid.  ^'^  Wiggs  V.  Koontz,  43  Ind. 

388.  430. 

^^  Albaugh    V.    James,    ibid.  ^i  Bargis   v.  Farrar,  45   Ind. 

398.  41. 

^8  ? tone    V.    McKinney,    43  22  ^T,^|^|g  ^  rpj^^j^^ppQ^  241nd. 

Ind.  352.  347  ;  Sherman   v.    Crothers,  25 

19  Oliver  v.  Pate,  43  Ind.  132.  Ind.  417. 


Chap.  XVII.]     PREPAEEN-G   BILLS    OP    EXCEPTION-.  641 

this  leave,  one  filed  a  bill  of  exceptions  on  the  sixth 
day  of  the  term,  it  was  held  too  late.^'* 

In  Wisconsin,  a  judge  at  chambers  or  a  court  com- 
mission has  power,  even  after  the  statutory  period 
has  expired,  to  grant  further  time,  provided  the  delay 
is  satisfactorily  excused.  And  where  an  order  was 
made  extending  the  time  thus  for  thirty  days,  npon 
the  condition  that  the  appellant  should  pay  the  cost  of 
the  motion  within  five  days,  it  was  held  the  commis- 
sioner had  power,  upon  the  lapse  of  the  five  days,  to 
extend  the  time  for  such  payment,  and  might  prop- 
erly do  so  on  being  satisfied  that  the  failure  to  pay 
resulted  in  a  mistake  of  the  attorney  as  to  the  date 
of  the  order .^*  Under  the  session  laAvs  of  1858,  time 
was  allowed  to  the  next  regular  term  of  court,'^^  crim- 
inal cases  being  excepted,  which  still  were  to  be  com- 
pleted before  the  end  of  the  trial  term,^®  unless  the 
district  attorney  consents  to  an  extension.^' 

In  Illinois,  a  bill  must  be  reduced  to  form,  and 
signed  during  the  trial  term,  except  by  agreement  of 
counsel,  or  the  direction  of  the  judge  that  it  may  be 
entered  in  vacation,  and  signed  nunc  jyro  tunc.  But 
in  all  cases  it  should  appear  on  the  face  to  have  been 
taken  and  signed  at  the  trial.^^  And  in  one  case  it 
was  held  that  a  bill  signed  and  filed  on  the  17th  of 
September,  when  the  trial  had  occurred  on  the  14th, 
was  good,  as  it  appeared  to  have  been  taken  at  the 

23  De  Haven  v.  De  Haven,  46  ^6  oieson  v.  State,  19  Wis. 
Ind.  296.  560. 

24  Pellage  v.  Foliage,  32  Wis.  27  Rathbouer  v.  State,  23  Wis. 
136.  469. 

25  State  ex  rel.  v.  Gale,  7  Wis.  28  Evans  v.  Fisher,  5  Gil.  453. 
693. 

41 


642  BELLS   OF   EXCEPTION.  [Pakt  III. 

term,  and  the  exceptions  appeared  to  have  been  taken 
properly,  even  though  no  reason  appeared  why  it  was 
not  signed  on  the  14th.-^  Also  where  the  bill  was 
sealed  and  filed  some  days  after  the  trial,  and  the  ex- 
ceptions noted  in  the  present  tense,  bnt  it  explicitly 
appeared  from  the  body  of  the  bill  that  the  exceptions 
were  actually  taken  at  the  trial,  the  bill  was  held 
available.^"  But  otherwise,  where  a  bill  was  not 
signed  for  two  years,  and  that  from  the  memory  of 
the  judge,  without  minutes,  and  without  any  excep- 
tions taken  at  the  time.^^ 

"Where  a  party  presents  his  bill  to  the  judge  in 
time,  he  has  performed  his  part,  and  is  not  to  be  prej- 
udiced by  the  judge's  delay  in  not  signing  until  the 
time  had  expired.  And  when  a  judge  has  signed,  if 
nothing  appears  to  the  contrary,  it  will  be  presumed 
that  he  would  not  have  done  so  if  not  presented  in 
proper  time;  and  the  mere  fact  that  the  bill  was  not 
filed  within  the  prescribed  time  will  not  rebut  that 
presumption,  although  it  may  be  rebutted  by  proof."^ 

In  Michigan,  an  order  of  extension  may  be  had 
after  the  time  usually  prescribed  has  expired,^*^  but 
during  the  term.^  The  power  extends  to  criminal 
cases,  also,  in  like  manner.^  But  it  seems  that  a  con- 
sent of  parties  dispenses  with  the  necessity  of  an  order 
of  extension  during  the  trial  term.^® 

29  Noece  v.  ITalcy,  23  111.  416.  ^4  Cleveland     v.     Stein,     14 

so  R.  R.  V.  Palmer,  24  111.  45.  Mich.  335. 

51  Dent  V.  Davison,  52  111.  S5  Crofoot  v.  People,  19  Mich. 
110.  254. 

52  Underwood  v.  Hossack,  S6  ^tlas  Mining  Co.  v.  John- 
40  111.  99.  ston,  22  Mich.  78. 

53  People    V.    Littlejohn,    11 
Mich.  61. 


OnAP.  XVIL]     PEEPAErN^G   BILLS    OF   EXCEPTION".  643 

And  the  same  rules  seem  to  be  applicable  to  a  case 
made  as  to  a  bill."^^ 

In  Missouri,  where  at  the  foot  of  a  bill  was  entered 
what  purported  to  be  an  agreement  by  the  plaintiff's 
attorney  that  the  defendant  might  file  it  nunc  pro 
tunc,  but  there  was  no  entry  on  the  record  concern- 
ing it,  the  bill  was  stricken  out,"^^  and  consent  of  the 
opposite  party  is  necessary  for  an  extension  beyond 
the  trial  term.^^  And  the  consent  must  be  made  a 
matter  of  record.*'' 

In  Alabama,  a  bill  may  be  signed  by  consent  of  the 
parties  in  vacation."**  But  not  otherwise;  and  where 
a  term  expired  by  law  at  twelve  o'clock  on  Saturday 
night,  and  a  bill  was  signed  by  the  judge  on  the  fol- 
lowing morning  "before  the  verdict,  and  judgment, 
and  sentence  of  the  court  had  been  entered  on  the 
minutes,  and  before  the  minutes  were  signed,"  it  was 
held  not  signed  during  the  term."*'- 

In  California,  thirty  days  are  allowed  from  the  en- 
tering of  the  judgment,*^  and  a  bill  of  exceptions  is 
required  in  a  criminal  case  after  a  motion  for  a  new 
trial  is  overruled.** 

It  appears  that,  in  the  United  States  Circuit  Courts, 
a  bill  may  be  sealed  two  years  after  the  trial  if  there 

^"  Turner   v.   Grand  Rapids,  ^^  Stephens  V.  State,  4Y  Ala. 

20  Mich.  390.  696. 

38RubletJ.Thomasson,20Mo.  '^^  Bryant    v.   State,   36  Ala. 

263.  270. 

S9  Diepenbrock    v.  Shaw,   21  <^  Caldwell  v.  Parks,  47  Cal. 

Mo.   122  ;  Farrar  v.  Finney,  21  640  ;  Berry  v.  R.  R.  ibid.  643. 

Mo.  5G9.  ^  People    v.    Ah  Fat,    ibid 

40  West   V.   Fowler,  65  Mo.  631. 
800. 


644  BILLS   OF  EXCEPTI0:N".  [Paht  III. 

appears  to  have  been  error  in  the  instructions  given 
to  the  jnry.^^ 

In  Massachusetts,  in  an  equitable  action,  it  was  held 
too  late,  after  the  adjournment  of  the  court,  to  apply 
to  the  judge  for  the  allowance  of  exceptions,  and  that 
a  written  agreement  entered  into  before  the  trial,  in 
which  the  parties  waived  certain  claims  and  objec- 
tions, and  stipulated  that  the  rulings  of  the  court 
should  be  subject  to  exceptions  as  in  actions  at  law, 
did  not  extend  the  time  within  which  the  exceptions 
should  be  presented  for  allowance.^'"' 

In  Vermont,  the  time  allowed  for  filing  exceptions 
is  thirty  days  from  the  final  adjournment  of  the 
court.^^ 

And  in  Massachusetts,  if  the  judge  does  not  allow 
exceptions  within  fifteen  days  after  they  are  pi^sented 
to  him,  the  Supreme  Court  will  not  entertain  them.^^ 

In  California,  however,  the  delay  of  the  judge  will 
not  prejudice  the  case  of  a  prisoner,  the  statute 
being  held  directory  which  directs  the  signing  within 
ten  days.  But  the  prisoner  must  prepare  his  bill,  and 
present  it  within  the  ten  days,  or  such  further  time  as 
may  be  granted  by  the  district  judge  or  a  judge  of 
the  Supreme  Court,  or  else  give  sufiicient  excuse  for 
his  failure  to  do  so.  If  the  judge  signs  after  the 
statutory  period,  the  Supreme  Court  will  presume  he 
had  sufficient  reason  for  so  doing.*^ 

In  Virginia,  it  must  appear  by  the  record  that  the 

*^  Greenway  v.  Graither,  Ta-  ^"^  Howard  v.  Town  of  Bur- 
ney,  227.  lington,  35  Vt.  491. 

46  Phillips  V.  Soule,  6  Allen,  48  Elwell  v.  Dizer,  1  Allen, 
160.  484. 

49  People  V.  Lee,  14  Cal.  610 


Chap.  XVII.]     PREPARING   BILLS    OP   EXCEPTION.  64:5 

bill  was  signed  during  the  term,  or  the  court  will  not 
entertain  it.°° 

In  Iowa,  a  consent  or  agreement  for  signing  in 
vacation  must  be  in  writing.  But  if  the  bill  is  silent 
as  to  when  it  was  settled,  it  will  be  presumed  to  have 
been  settled  in  term  time  regularly,^'  or  so  settled  by 
agreement,  without  reference  to  the  time  of  filing.^- 

In  'New  York,  the  presumption  is,  from  the  judge 
signing  the  bill,  that  it  was  presented  in  proper  time.^^ 

In  Georgia,  it  is  held  that,  if  the  bill  bears  date  be- 
fore the  trial,  and  there  is  nothing  in  the  record  by 
which  it  can  be  amended  and  the  true  date  be  known, 
a  writ  of  error  must  be  dismissed.^* 

In  Pennsylvania,  it  is  held  that  the  rules  for  the 
presentation  and  settlement  of  bills  of  exception  with- 
in a  specified  time  are  for  the  benefit  of  defendants  in 
error,  and  cannot  be  disregarded  without  their  con- 
sent.^^ 

§  882.  In  some  states  it  is  requisite  to  serve  a  no- 
tice of  the  settling  of  a  bill  iipon  the  opposite  party, 
and  sometimes  even  a  formal  copy  of  the  bill  itself. 
Thus,  in  Minnesota,  where  such  notice  was  not  given, 
it  was  held  the  bill  must  be  dismissed.^^  And  in  "Wis- 
consin, the  service  of  a  bill  is  requisite  on  the  part  of 
the  appellant,  and  of  amendments  thereto  on  the  part 
of  the  respondent.  And  where,  after  such  reciprocal 
service,  a  time  is  stipulated  for  settling  the  bill,  the 

^  Telegraph   Co.  v.  Hobson,  ^  Perry  v.  Higgs,  6  Ga.  43. 

15  Gratt.  122.  ^^  Kirkpatrick  v.  Tex,  49  Pa. 

51  Claggett  V.  Gray,  1  Clarke,  St.  123. 

19.  ^  Daniels  v.  Winslow,  2  Min. 

^2  Mays  V.  Deaver,  ibid.  216.  113. 

^^  Harlow    v.    Humiston,    6 
Cowan,  191. 


646  BILLS    or   EXCEPTION".  [Part  IIL 

time  cannot  be  afterwards  settled  on  notice,  unless 
the  time  has  been  extended  by  a  judge  or  a  court 
commissioner.^^  And  where  a  bill  appears  to  have 
been  filed  before  notice  of  settlement,  it  must  be 
stricken  from  the  files;  and  that  notice  or  service 
of  the  bill  must  be  within  sixty  days  after  written 
notice  of  the  judgment;  and  two  years  are  allowed  for 
appeal.^^ 

But  where  a  bill  was  settled  before  a  judge,  and 
one  of  the  plaintiff's  attorneys  appeared  and  professed 
himself  satisfied  with  it,  the  judge  having  at  his  in- 
stance rejected  a  draft  presented  by  the  defendant's 
attorney,  and  accepted  his  substitute  with  some  ex- 
ceptions, and  the  judge  filled  in  the  date  and  signed 
the  bill  in  the  presence  of  another  of  the  plaintiff's 
attorneys,  wdio  made  no  objection  to  the  bill,  which 
recited  that  it  had  been  settled  by  the  court  in  the 
presence  of  the  attorneys  for  the  parties,  and  after- 
wards the  plaintiff's  attorneys  moved  to  strike  it  from 
the  files,  on  affidavit  that  they  had  received  no  notice, 
and  had  never  assented  to  the  signing  of  it,  the 
motion  was  denied,  as  their  conduct  amounted  to  a 
waiver  of  notice,  and  of  objection  to  the  draft  of  the 
bill.^' 

It  must  clearly  appear  that  notice  of  the  judgment 
was  served,  or  a  bill  prepared  afterwards  will  not  be 
stricken  off  the  files  as  out  of  time.^" 

In  Georgia,  service  of  bill  is  held  not  needful  ;^^  and 

57  Yule  V.  Ely,  21  Wis.  326.  ^^  Oliver  v.  Town,    28   "Wis. 

58  Vronian  v.  Dewey,  22  Wis.     328. 

360.  ^^  Bliss    V.    Stevens,   13   Ga. 

59  Estabrook  v.  Messerstuitb,     402. 
18  Wis.  545. 


Chap.  XVII.]     PEEPAKING   BILLS    OF   EXCEPTION.  647 

the  power  of  revising  the  testimony  is  vested  in  the 
judge ;  *^^  which  power,  however,  entirely  ceases  with 
signing  and  filing,  so  that  he  cannot  make  any  changes 
afterwards.^^  As  also  in  Alabama.^  Of  course,  both 
parties  have  a  right  to  insist  on  all  the  facts  and  ex- 
ceptions being  inserted  in  the  bill."^ 

In  West  Virginia,  the  judge  may  afterwards  make 
corrections  in  the  bill.^ 

In  an  English  case  the  question  arose,  but  was  not 
determined,  whether  a  judge  has  power  to  amend 
after  signing.  If  the  matter  had  not  passed  off  in 
another  way,  the  indication  was  that  the  power  would 
have  been  conceded,  especially  as  it  was  held  dis- 
tinctly that  the  court  in  banc  had  no  jurisdiction  to 
inquire  into  such  amendment,  if  made.^'' 

In  ]!!^orth  Carolina,  a  paper  was  appended  to  the 
transcript,  purporting  to  be  exceptions,  signed  only 
by  the  counsel  for  the  defendant,  and  therein  alleged 
to  have  been  taken  by  them  on  the  trial.  It  was  de- 
cided that  the  court  could  not  take  notice  of  it  because 
it  had  not  the  sanction  of  the  judge ;  '^^  for,  although 
it  is  held  necessary,  in  some  states,  that  exceptions  to 
instructions  should  be  signed  by  the  party  or  his  at- 
torney, and  that  they  so  appear  of  record,"^  yet  a  final 
signing  of  the  bill  by  the  judge  is  held  generally  an 

62  Burtine    v.   State,    18    Ga.  ^6  Seibright  v.    State,  2   W. 

63T.  Va.  593. 

^^  State   ex   rel.    v.  Powers.          ^'  Docks,  &c.,  v.  Penhallow, 

14  Ga.  389.  1  Hurl.  &  Nor.  329. 

6^  Kitchen  V.   Moye,  11   Ala.          ^8  g^-^te    v.   Hart,     6    Jones, 

394.  390. 

6^  Shaw   V.   Mason,  10  Kan.          ^^  Bush  v.    Denham,  15  Ind. 

190.  252  ;  Maghee  v.  Baker,  ibid.  254. 


648  BILLS    OF   EXCEPTION".  [Part  III. 

essential  requisite  with  some  exceptions,  where  it  may 
be  certified  by  the  clerk,  or  otherwise  authenticated."*' 

If  a  party  dies  after  filing  exceptions  and  before 
allowance  by  the  judge,  yet  the  exceptions  may  be 
considered  by  the  appellate  court;  for  although,  tech- 
nically, there  can  be  no  appearance  for  a  deceased 
person,  yet  the  court  will  pass  upon  the  merits  from 
any  one  who  holds  the  office  of  an  attorney  within 
the  court.  So  held  in  Massachusetts.^^  In  Michigan, 
it  is  held  that  the  administrator  in  such  case  should 
be  brought  in  to  the  settlement  of  the  bill,  by  notice.^- 

Notice  is  not  necessary  in  any  case  in  Kansas ;  but 
the  judge  may,  in  the  exercise  of  a  sound  discretion, 
sign  a  bill  for  one  party  alone."^ 

§  883.  The  signing  and  sealing  by  the  judge  is  the 
next  step  after  settling  the  contents  of  the  bill,  which 
must  be  in  term  time,  unless  otherwise  provided  by 
statute,  or  by  a  judge's  order  extending  the  time, 
which  in  some  states,  as  we  have  seen,  can  only  be 
obtained  on  consent  of  the  parties.  The  allegation, 
however,  need  not  be  made  if  otherwise  it  appear  to 
be  in  time;  as  where  the  bill  is  signed  on  the  same 
day  of  the  trial,  as  is  shown  by  the  face  of  the  bill,  it 
sufficiently  appears  to  have  been  signed  during  the 
term."^ 

The  signing  must,  in  general,  be  by  the  judge  who 
tried  the  cause."^     And  without  consent  of  parties,  it 

7»  Riker  v.  Scofield,   6  Wis.  '^  McClure  v.  R.  R.  9  Kan. 

367.  380. 

71  Kelley  v.  Riley,  106  Mass.  ''^  Myers  v.  Segars,  41  Ala. 

342.  383. 

■^2  Van  Valkenburg  v.  Rogers,  "'^  Brown  v.  Happ,  39  Ga.  61 
14  Mich.  225. 


Chap.  XVIL]     PKEPAEING   BILLS    OF   EXCEPTIOIT.  649 

is  held,  a  successor  cannot  sign ;  "^  and,  a  fortiori,  a 
successor  cannot  be  compelled  to  sign/^ 

A  bill  may  be  signed,  however,  by  a  specially  ap- 
pointed judge,  who  tries  the  cause,  in  Indiana,"'*  al- 
though he  does  not  hold  the  office  of  judge.  But  the 
special  appointment  must  appear  of  record. 

Where  a  court  consists  of  several  judges,  a  major- 
ity must  sign  the  bill,  if  present;  although  it  has  been 
held  that,  where  a  presiding  judge  is  authorized  to 
hold  a  court  alone,  and  a  bill  has  been  signed  by  him, 
it  will  be  presumed  that  the  associates  were  not  j^res- 
ent  until  the  contrary  appears  by  the  showing  of  the 
defendant  in  error,  and  that,  too,  though  it  may  appear 
that  all  the  judges  were  present  at  the  commencement 
of  the  term."^  But  in  Ohio,  under  a  statute  merely 
requiring  the  judges  to  whose  opinion  exception  is 
taken  to  sign  the  bill,  it  was  held  that,  where  two 
judges  were  of  opinion  that  a  new  trial  should  be 
granted  in  a  cause,  and  the  other  two  overruled  the 
motion  therefor,  it  was  the  duty  of  the  judges  over- 
ruling the  motion,  and  to  whose  decision  the  exception 
therefore  was  taken,  to  sign  the  bill.^ 

In  Michigan,  a  judge  may  sign  a  bill  after  resigning 
his  office,  although  there  might  have  been  irregularity 
in  the  settlement,  since  otherwise  the  party  might  be 
remediless  without  his  own  fault;  ®^  and  especially  so 

'^  Consaul   v.    Sidell,  t    Mo.  '^  Miller  v.  Bruger,  2  Carter 

250.  (Ind.)  S.ST. 

"  Fellows    V.   Tait,   14  Wis.          ^^  Basam  v.  Parrish,  18  Ohio, 

156.  266. 

•8  Negley  v.  Wilson,  15  Ind.         ^^  Tefft  v.  Windsor,  It  Mich. 

216.  426. 


650  BILLS    OF   EXCEPTION".  [Part  III. 


by  consent  of  parties.^*  And  so  in  Wisconsin,  after 
the  term  of  oflSce  has  expired.^*^ 

But  where  a  court  has  been  al^oUshed  by  an  act  of 
the  legislature,  it  is  held,  in  Missouri,  that  a  former 
judge  therein  cannot  sign  a  bill.^^ 

In  Wisconsin,  a  judge  may  sign  a  bill  after  his  term 
of  office,  and  in  a  case  tried  by  him  outside  of  the 
judicial  circuit  for  which  he  was  elected.^ 

In  Indiana,  a  signing  is  not  allowed  after  the  term 
of  office  expires.  But  the  successor  may  sign ;  ^^  which 
is,  I  judge,  an  exception  to  the  general  rule,  which  is 
based  upon  the  fact  that  one  who  did  not  hear  the 
trial  IS  not  supposed  competent  to  settle  the  bill. 

In  Iowa,  it  has  been  held  that  "  Seevers,  Judge,"  is 
a  sufficient  signature,^"  and  probably  it  would  be  so 
accounted  anywhere. 

If  the  judge  dies  before  a  bill  is  settled,  it  is  held, 
in  ^NTew  York,  that,  to  prevent  a  faihire  of  justice,  the 
appellate  court  will  order  the  clerk  to  sign  a  bill  in 
the  name  of  the  deceased  judge.^^  The  case  in  which 
this  occurred  was  afterwards  heard  in  the  Court  of 
Appeals  on  the  bill  so  prepared. 

It  is  not  necessary  that  the  bill  be  sealed  in  the 
United  States  Supreme  Court.^  I^or  of  late  in  Ala- 
bama.^^    ^or  in  Florida.^*^    And  I  suppose  the  time  is 

^1  Tefft  V.  Windsor,  IT  Mich.  ^^  Mays  v.  Deaver,  1  Clarke, 

426.  219. 

^2  gale  V.  Haselton,  21  Wis.  8'  Milvehal    v.     Milward,    2 

320.  Duer,  GOV. 

^3  Falkerson  v.  Houts,  65  Mo.  ^^  Generes    v.    Campbell,    11 

302.  Wall.  193. 

84  Oliver  v.  Town,  24  Wis.  ^^  Moore  v.  Appleton,  34  Ala. 
612.  147. 

85  Smith  V.  Baugh,  32  Ind.  ^  Robinson  v.  L'Engle,  13 
163.  Fla.  482. 


Chap  XVII]     PREPARING   BILLS    OF   EtCEPTIOX.  651 

not  far  distant  when  the  intrinsic  absurdity  of  a  scrawl 
or  scroll  seal  will  everywhere  be  recognized  in  regard 
to  all  documents  and  instruments.  A  requirement 
that  a  bill  should  be  sealed  by  the  judge  with  the  seal 
of  the  court  might  have  some  meaning. 

In  Maryland, — but,  I  believe,  nowhere  else,  —  each 
separate  exception  in  the  bill  must  be  separately  signed 
and  sealed ;  and,  where  this  is  not  done^  the  fact  that 
the  last  is  signed  and  sealed  does  riot  make  the  whole 
one  continuous  exception.^^ 

§  884.  In  Missouri,  where  a  motion  for  a  new  trial 
is  continued,  the  bill  may  be  prepared  at  the  term  at 
which  the  motion  is  determined."- 

§  885.  In  Indiana,  it  is  heM  that  an  exception, 
noted  to  the  giving  of  an  instruction  at  the  end 
thereof,  and  signed  by  the  exceptor  or  his  attorney, 
is  sufficient  to  make  the  instruction  and  exception  a 
part  of  the  record.'-'*' 

§  886.  In  chancery,  the  repoi-t  of  a  master  under  a 
reference  to  him  is  held,  in  lUmois,  to  be  a  part  of  the 
record  without  a  bill,  and  a  bill  of  exceptions  has  no 
appropriate  office  in  a  suit  in  chancery,  unless  it  is 
to  preserve  oral  evidence  introduced  on  the  hearing. 
All  other  proceedings  in  chancery  are  parts  of  the 
record,  without  being  preserved  by  bill  ^  But  this 
seems  overruled  by  implication  in  the  unreported  case 
of  Brockenbrough  v.  Dresser. 

§  887.  In  Kentucky,  a  bill  needs  not  be  signed  and 
sealed,  where  it  is  spread  at  large  upon  the  order 

»i  Ellicott  r.  Martin,  6   Md.          ^3  i^g   Co_  j,^  joljoson  46  In(j_ 

509.  315 

^2  Riddlesbargerv.  McDaniel,  ^*  Ferris  v.   McClure,  40  111. 

38  Mo.  138.  99. 


652  BELLS   or   EXCEPTION.  L^akt  III. 

book,  it  then  being  regarded  as  a  part  of  the  record  j  °^ 
but  this  is  undoubtedly  exceptional. 

§  888.  In  making  up  a  bill  of  exceptions,  the  court 
may  recall  a  witness,  and  interrogate  him  as  to  what 
his  testimony  was  on  the  trial,  but  neither  party  has 
a  right  to  examine  him  when  so  called.'"' 

§  889.  In  Vermont,  a  presiding  judge  has  no  author- 
ity to  amend  a  bill  after  his  term  of  office  has  expired, 
although  he  may  do  so  before,  even  where  the  bill  has 
been  filed."^ 

§  890.  In  Alabama,  the  conclusion  of  a  bill  setting 
out  the  evidence  and  the  charge  does  not  sufficiently 
show  that  an  exception  was  reserved  to  the  charge 
when  it  merely  states,  "  This  is  signed  and  sealed  as 
plamtifl'"s  bill  of  exceptions."  ^^ 


CHAPTER  XVin. 

Disallowed  Exceptions. 

§  891.  In  certain  cases,  bills  of  exception,  as  in- 
sisted on  by  the  parties,  may  properly  be  disallowed; 
for  a  judge  cannot  be  required  to  sign  anything  which 
he  does  not  believe  to  be  confonnable  to  the  truth. 
Thus,  where  evidence  offered  to  prove  a  fact  is  ex- 
cluded by  the  judge,  and  is  afterwards  admitted  for 

85  AUsup   V.  Hassett,    12  B.          ^7  phelps  v.  Conant,   30  Vt. 

Mon.  129.  282. 

^  Whitmore  v.    Coats,     14         ^^  Foster    v.    Hightower,    40 

Mo.  9.  Ala.  295. 


Chav.  xviii]      disallowed  exceptions.  653 

the  purpose  of  contradicting  a  witness  who  had  been 
examined  on  the  subject,  and  a  bill  of  exceptions 
states  that  the  evidence  was  offered  and  admitted  for 
the  purpose  of  proving  the  fact,  it  may  be  disallowed 
properly,  because  not  according  to  the  truth  of  the 
case.  And  so,  where  a  judge  ruled  that  the  circum- 
stances did  not  authorize  an  implication,  either  that 
certain  property  was  personal  property  or  real  estate, 
and  the  bill  tendered  stated  that  the  judge  refused  to 
rule  that,  under  the  specified  circumstances,  there  was 
no  implication  that  a  fixture  was  personal  property, 
and  the  implication,  if  any,  was  that  it  was  real 
estate.^ 

§  892.  And  where  a  bill  is  disallowed,  the  right  of 
the  excepting  party  to  prove  some  of  the  exceptions 
and  waive  others,  is  limited  to  the  case  where  the 
exceptions  are  wholly  distinct;  for,  if  the  true  and 
false  statements  are  intermingled,  the  whole  bill  may 
properly  be  disallowed,  and  always  where  an  excep- 
tion does  not  state  the  ruling  excepted  to,  and  the 
evidence  to  which  it  is  applied,  with  substantial  accu- 
racy, so  as  to  present  the  same  question,  and  in  the 
same  aspect,  to  the  appellate  court  as  to  the  court 
below,  the  petitioner  cannot  be  heard  in  the  Supreme 
Court,  either  in  the  form  in  which  it  was,  or  in  that  in 
which  it  appears  it  should  have  been  presented  to  the 
judge  below.^  And  the  certificate  of  the  judge  dis- 
allowing a  bill  is  prima  facie  evidence  that  it  is  not 
conformable  to  the  truth  .^ 

§  893.  But  where   exceptions   are   disallowed,  the 

^  Sawyer  v.  Iron  Works,  116  ^  Ibid. 

Mass.  424.  ^Ibxdi. 


654  BILLS    OF   EXCEPTION.  [Part  IIL 

exceptor  may  petition  for  leave  to  prove  the  truth 
thereof  -within  the  time  the  exceptions  would,  if 
allowed,  have  been  entered,*  and  on  notice  to  the 
opposite  party,  which  notice  must  strictly  conform  to 
rule,  so  tliat  if,  even  by  the  mistake  of  the  officer, 
eight  days'  notice  is  given,  instead  of  ten,  the  mistake 
is  fatal.^  This  petition  must  only  relate  to  the  excep- 
tions presented  and  disallowed,^  and  also  to  the  proper 
contents  of  the  bill  presented,  so  that,  if  written  doc- 
uments are  referred  to  in  the  bill  as  constituting  a 
part  thereof,  but  which  are  neither  copied  into  it  nor 
properly  identified,  they  cannot  be  brought  in  by  the 
proof  to  establish  the  exceptions/ 

The  petition,  in  Massachusetts,  must  be  sworn  to, 
but  the  affidavit  for  this  purpose  is  not  to  be  taken  as 
establishing  the  truth  of  the  exceptions.  Thereupon 
a  commissioner  is  to  be  appointed  by  the  court  to 
take  depositions  of  witnesses  to  be  adduced  by  the 
parties.^ 

And  if  the  petitioner  neglects,  without  excuse,  for 
sixteen  months,  to  prove  his  exceptions  before  the 
commissioner,  it  is  a  good  ground  for  dismissing  the 
petition.^ 

"When  the  commissioner  reports,  the  question 
whether  the  truth  of  the  exceptions  is  established  is 
a  question  of  law,  to  be  decided  by  the  court. ^° 

*  Elwell  V.    Dizcr,    1    Allen,         ^  Comtnonw,  v.  Marshall,  15 

484.  Gray,  202. 

^Phillips  V.   Iloyle,  4   Gray,         ^Freeman     v.     Griggs,     116 

568.  Mass.  302. 

^  Sawyer  v.  Iron  Works,  116         ^^  Sawyer  v.  Iron  Works,  116 

Mass.  424.  Mass.  424. 

'  Garlington  v.  Jones,  37  Ala. 
240. 


Chap.  XVIII.]       DISALLOWED   EXCEPTIOlSrS.  655 

In  Missouri,  the  method  of  establishing  the  truth 
of  disallowed  exceptions  is  by  affidavits,  without  the 
formalities  necessary  in  Massachusetts.^^ 

§  894.  But  before  the  establishing  thus,  the  bill 
may  be  authenticated  by  the  signature  of  bystanders; 
two  or  more,  in  Iowa ;  ^~  three  in  .Missouri ;  ^^  two  in 
Mississippi;'^  three  in  Arkansas,'^  &c.,  this  matter 
being  prescribed  by  statute.  They  must  be  attorneys, 
except,  perhaps,  in  Arkansas,  where  they  are  to  be 
simply  reputable  inhabitants  of  the  state. 

Where  a  bill  is  so  authenticated,  it  must  fii'st  show 
that  it  had  been  refused  by  the  judge,  and  (in 
Texas)  certified  the  cause  of  such  refusal,  that  the 
persons  signing  were  b^^standers,  that  they  were 
present  at  the  trial,  and  when  the  fact  occurred  in 
court,  concerning  which  the  dispute  exists  between 
the  judge  and  the  party.  It  must  point  directly  to 
the  matter  at  issue,  and  the  certificate  must  be  given 
at  the  time  when  the  fact  occurred  in  court.  It 
should  then  appear  whether  the  judge  permitted  it  to 
be  filed  after  signing  by  the  bystanders.  If  not,  then 
the  exceptions  are  to  be  proved  in  the  appellate 
court.^*^  It  mvist  be  definite,  and  state  the  points 
affirmatively,  and  not  what  the  signing  bystanders 
understood  to  be  the  judge's  ruling.'^ 

But  it  is  deemed  sufficient,  in  Mississippi,  if  the  bill 

1^  Bowen  v.  Lazalere,  44  Mo.  ^^  Ilixon  v.  Weaver,  3  Eng. 

389.  136. 

^2  St.   John    V.   Wallace,    25  ^^  Houston  v.  Jones,  4  Tex. 

Iowa,  22.  172. 

1"^  Smith  V.  R.  R.  55  Mo.  602.  i"  Clark  v.  Parvin,  1   Morris 

14  Van    Buren    v.   State,    24  (Iowa)  371. 
Miss.  512. 


G56  BELLS    OF   EXCEPTION.  [Part  III. 

states  the  refusal  of  the  jnclge  to  sign,  the  fact  that 
those  signing  are  practising  attorneys,  and  the  fact 
that  they  were  present  at  the  trial. '^  And  in  Iowa, 
the  judge  needs  not  certify  his  refusal.  The  certifi- 
cate of  the  attorneys  is  sufficient  on  this  point.^^  And 
this  is  probably  the  general  rule  where  bystanders 
may  sign  at  all,  which  is  merely  a  statutory  arrange- 
ment, not  existing  where  there  is  no  statutory  enact- 
ment establishing  the  practice."*'  This  method,  too, 
can  only  be  resorted  to  during  the  term;  and  if,  by 
agreement  of  parties,  the  time  of  settUng  a  bill  has 
been  extended  beyond  the  term,  it  is  wholly  unavail- 
able.^^ !N^or  can  one  of  the  signing  bystanders  be  an 
attorney  of  the  party .^^ 

§  895.  The  usual  remedy  where  a  judge  refuses  or 
neglects  to  sign  a  proper  bill  is  by  mandamus,  which 
will  not  issue,  however,  except  where  the  bill  is  com- 
plete. So,  where  a  skeleton  of  a  bill  was  annexed  to 
a  petition  for  a  mandamus  containing  blanks  with 
entries,  "Here  insert  testimony,"  and  "Here  insert 
motion,"  the  petition  for  a  mandamus  was  thereon 
overruled.^^ 

Mandamus  lies  to  compel  the  insertion  of  all  the 
evidence  on  the  point  excepted  to.'^"^  Also,  where  it 
was  not  signed  within  the  time;  but  in  this  the  party 
must  be  without  fault.^* 

18  Rawls  V.  State,  8  S.  &  M.         22  Walker  v.  Stoddard,  31  Mo. 

599.  123. 

1^  Craig  V.  Andrews,  7  Clarke,         ^  People    ex    rel.    Crauc    V. 

11.  Judge,  24  Mich.  513. 

'^^  Murphy  v.  Lucas,  2  Ham.         2*  Lane  v.  Robinson,  40  Ga. 

(Ohio)  255.  470. 

21  St.   John   V.    Wallace,   25 
Towa,  21. 


Chap.  XVIII.]  DISALLOWED   EXCEPTION'S.  657 

But  in  Pennsylvania,  the  remedy  is  not  by  manda- 
mus where  a  judge  refuses  to  seal  a  bill,  but  a  special 
writ,  whereon,  if  the  judge  in  his  return  denies  the 
facts,  the  petitioner  has  an  action  for  a  false  return. 
And  the  practice  is  not  according  to  the  course  of 
pleading  in  mandamus.  A  demurrer  will  not  be 
allowed,  but  the  return  may  be  excepted  to.~^ 

To  a  writ  of  mandamus,  it  is  a  suflScient  return 
that  the  bill  disallowed  is  not  true.^° 

Mandamus  also  lies  against  a  clerk  to  compel  him 
to  certify  duly  to  the  bill.'^^ 

§  896.  In  England,  the  Court  of  Error  does  not 
become  possessed  of  a  bill  of  exceptions  until  the 
judge  acknowledges  his  seal.'^  And,  formerly,  on 
motion,  the  judge  in  IN'ew  York  might  be  cited  to 
come  in  and  confess  his  seal.^^ 

§  897.  If  a  party  fails  to  establish  the  truth  of  dis- 
allowed exceptions,  this  does  not  debar  him  from 
using  those  afterwards  which  were  allowed.^**  And  a 
party  may  at  pleasure  waive  some,  and  use  others 
which  have  been  proved,  where  all  had  been  disal- 
lowed.^' But  arguing  exceptions  allowed  may  be  a 
waiver  of  a  petition  to  establish  the  truth  of  different 
exceptions.^" 

25  Conrow  v.  Schloss,  65  Pa.     373  ;    Croswell    v.  Byrnes,    9 
St.  28.  Johns.  288  (note). 

26  State  V.  Todd,  4  Ham.  351.         so  PhiUips  v.  Hoyle,  4  Gray, 
2"  Jones  V.  Payne,  41  Ga.  32.     568. 

28  Earl  of  Glasgow  v.  Alum         ^^  Commonw.     V.     Marshall, 
Co.  8  Eng.  L.  &  E.  23.  15  Gray,  202. 

29  Pomroy  V.Preston,  2  Gaines,         ^2  Moore  V.  Quirk,  105  Mass. 

49. 

42 


058  BILLS   OF  EXCEPTIOIf.  [Pakt  III 


CHAPTER   XIX. 
Practice  in  the  Appellate  Couiit. 

§  898.  It  is  the  business  of  the  clerk  below  to  send 
up  the  copies  of  the  bills  of  exception  with  the  gen- 
eral record,^  or  sometimes,  as  in  Georgia,  the  origi- 
nals, and  not  the  copies,^  under  certificate.  Where 
the  copies  are  required,  and  the  original  sent,  the  lat- 
ter will  not  be  entertained ;  ^  but  it  is  held,  in  Iowa,  it 
will  have  no  further  injurious  efiect  than  to  work  a 
continuance  to  obtain  a  corrected  transcript.*  And 
the  copies  transmitted  are  not  to  be  controlled  by  the 
originals.^  In  Wisconsin,  it  seems  that  either  the 
original  or  a  copy  may  be  sent  up  with  the  record* 
on  writ  of  error. 

§  899.  The  next  step  is  the  assignment  of  errors 
thereon.  A  bill  of  exceptions  cannot  be  made  a  sub- 
stitute for  a  writ  of  error,^  nor  for  an  assignment  of 
errors.  This,  however,  is  limited  by  the  record,  so  that 
error  assigned  on  a  point  not  embraced  in  the  record 
proper,  or  brought  in  by  a  bill  of  exceptions,  must  not  be 
considered.® 

1  Fennow  V.  R.  R.  22  Iowa,  ^  Commonw.  V.  Thornton,  14 
528.  Gray,  43. 

2  R.  R.  V.  Shorter,  13  Ga.  300.  ^  Orton  v.  Noonan,  19  Wis. 

3  Ilobson  V.  Kissam,  8  Ala.  357. 

365.  '  Harris    V.    State,    2   Kelly 

4  Fennow  V.  R.  R.  22  Iowa,     (Ga.)  213. 

528.  ®  Sierer  v.  Martin,  63  111.  290. 


Chap.  XIX]     PKACTICE  IN^  THE  APPELLATE  COURT.      659 

In  Alabama,  there  was  no  final  judgment,  and  no 
writ  of  error,  in  a  certain  case,  and  the  bill  of  excep- 
tions was  assigned  as  error.  Held  that  it  must  be 
stricken  from  the  docket.® 

An  irregularity,  snch  as  signing  a  bill  of  excep- 
tions after  suing  out  a  writ  of  error,  is  waived  by 
joinder  in  error.'® 

A  wiit  of  error  may  be  dismissed,  if  the  record  is 
so  confused  that  the  status  of  the  case  below  cannot 
be  determined;  "  or  if  the  evidence  is  insufficiently 
set  forth  in  the  bill,  or  the  record  is  not  certified  in 
time ;  '^  or  if  the  bill  does  not  plainly  specify  the  de- 
cision complained  of;  ^^  or  if  the  record  is  of  a  case 
still  pending  below;  ^*  or  if  the  record  is  contained  in 
loose,  disconnected  papers,  insufficiently  identified;  ^^ 
or  where  the  testimony  is  not  set  out  in  the  body  of 
the  bill,  and  there  are  discrepancies  in  the  paging.^* 

But  in  Florida,  if  there  is  a  confused  statement  in 
the  bill  as  to  the  rejection  of  material  evidence,  leav- 
ing it  doubtful  whether  it  was  actually  rejected,  the 
cause  will  be  remanded.^''  And  in  Georgia,  where  au 
uncertainty  can  be  removed  by  the  record  proper,  it 
will  be  so  done.^^  In  !N^ew  York,  redundancies  may 
be  stricken  out  on  motion.'® 

§  900.  It  has  been  held  that  if  a  plaintiff  in  cject- 

^  Harrington  v.  Merriweath-         ^^  Gas  Co.  v.  Green,  21  Iowa, 

er,  20  Ala.  607.  335. 

^^  Brown  V.  Bissell,  1  Doug.         ^^  Pearson   v.  Grice,    8   Fla.. 

(Mich  )  273.  214. 

11  Davis  V.  Meyers,  41  Ga.  95.         ^^  Garner  v.  Keaton,  13  Ga. 

12  Seay  v.  Treadwell,  ibid.  412.  430. 

13  Smitli  t;  Boatrite,  ibid.  413.  i^  Ilarting  v.   People,  4  Par- 
1*  Sparks  V.Maxwell,  ibid. 421.  ker,  319. 

15  Dye  r.  Mattox,  ibid.  425. 


660  BILLS    OF   EXCEP'xlON".  [Part  III. 

ment  does  not  offer  evidence  of  title  sufficient  to  put 
the  defendant  on  his  defence,  he  cannot  be  prejudiced 
by  any  erroneous  ruhng  of  the  court  in  regard  to 
such  defence,  and  cannot  therefore  avail  himself, 
upon  a  writ  of  error,  of  such  erroneous  ruling  as  a 
ground  of  reversal.  But  if  the  defects  in  the  plain- 
tiff's evidence  be  such  as  might  have  been  supplied 
by  the  trial,  had  the  objection  been  made  and  sus- 
tained, or  if  it  does  not  clearly  appear  from  the  bill 
of  exceptions  that  the  plaintiff  could  not  have  been 
prejudiced  by  the  erroneous  ruling  of  the  court  in 
regard  to  the  defence,  the  plaintiff  is  entitled  to  avail 
himself  of  such  errors  as  a  ground  of  reversal.^" 

§  901.  Where  the  conclusion  of  a  bill  of  exceptions 
stated  that,  "Whereupon  the  plaintiff  at  the  time 
noted  exceptions  on  the  margin  of  a  part  of  the 
charges  given  by  the  court  to  the  jury,  and  at  the 
time  excepted  to  each  of  the  charges  severally  upon 
which  exceptions  were  noted  on  the  margin  thereof 
at  the  time,"  the  court  held  itself  unable  to  determine 
whether  the  plaintiff  excepted  to  each  and  all  of  the 
instructions  given,  or  only  to  such  as  had  the  excep- 
tions noted  on  the  margin.  And  to  add  to  the  em- 
barrassment, the  clerk  had  certified  that  there  were 
no  instructions  on  file  so  marked  on  the  margin.^^ 

§  902.  Wliere  a  bill  is  defective  in  any  particular 
wherein  an  amendment  is  possible  that  will  remove 
the  defect,  it  may  usually,  on  motion,  be  taken  from 
the  files  for  amendment  by  the  court  below.  But  not 
in  the  Supreme  Court  of  the  United  States.^"^    "Nor 

20  Osborne  v.  Tunis,  1  Dutch.  22  Stimpson  v.  R.  R.  3  How. 
(N.  J.)  633.  (U.  S.)  556. 

21  Cobb  V.  Kurtz,  40  Ind.  324. 


Chap.  XIX.]    PRACTICE  DT  THE  APPELLATE  COUBT.      661 

in  Massachusetts,  where,  however,  the  bill  may  be 
amended,  in  the  Supreme  Court,  without  taking  from 
the  files,  by  an  agreement  of  the  parties,  and  consent 
of  the  judge  below.^''  In  that  state,  the  judge  below 
cannot  himself  amend  after  the  bill  has  been  entered  in 
the  Supreme  Court,  which,  however,  on  his  certificate 
of  an  error  therein,  may  postpone  or  continue  the  cause 
for  the  purpose  of  allowing  a  hearing  in  the  court  below 
on  the  proposed  amendment,  the  result  to  be  certified 
to  the  Supreme  Court.^*  On  the  hearing  of  the  excep- 
tions in  the  Supreme  Court,  it  is  too  late  to  receive 
any  certificate  of  error,  unless  both  parties  consent ;  ^ 
and  more  especially  where  the  only  effect  of  rejecting 
the  amendment  is  to  remand  the  cause  for  a  new  trial. 

In  Georgia,  where  the  original  must  be  sent  up,  it 
has  been  held  that,  where  the  original  is  lost,  and  a 
certified  copy  is  brought  up,  a  clerical  error  in  the 
copy  may  be  amended  on  agreement  of  counsel,  and 
the  copy  established  instead  of  the  original.^^ 

In  Wisconsin,  held,  that  if  appellant  desires  to  cor- 
rect an  error,  he  should  obtain  leave  to  withdraw  the 
record  in  order  that  the  bill  may,  on  amendment,  be 
attached  to  it,  and  the  whole  returned  by  the  clerk. 
And,  on  obtaining  such  leave,  there  is  no  need  of 
further  leave  to  withdraw  the  bill  for  amendment; 
after  the  order  to  take  from  the  files,  it  is  under  his 
control.  And  after  such  withdrawal,  the  bill  will  not 
be  reinstated  without  amendment.^''     While  the  bill  is 

23  Ashley  V.  Root,  4 Allen,  505.  26  Q^y   v.  Peacock,    41   Ga. 

24McCanen    v.    McNulty,    7  91. 

Gray,  139.  27  Vroman  v.  Dewey,  22  Wis. 

25  Johnson  v    Couillard,    Al-  360. 
len,  446 


662  BILLS    OP   EXCEPTION.  [Paut  III. 

thus  absent  for  amendment,  the  case  is  still  in  the 
Supreme  Court,  and  liable  to  be  noticed  for  hearing.^ 

In  Illinois,  a  cause  may  be  continued  for  amending 
a  bill;  as,  for  instance,  by  inserting  omitted  documen- 
tary evidence,  on  condition  that  proper  diligence  had 
been  nsed  to  supply  the  deficiency  before  the  motion 
to  continue.'^ 

In  Indiana,  where  a  bill  failed  to  show  (although 
professing  to  set  out  all  the  evidence)  that  any  evi^ 
dence  was  adduced  as  to  a  levy  or  sale  by  the  sheriff, 
or  a  deed  thereon,  it  was  held  fatal  in  an  action  to  set 
aside  the  sheriff's  sale,  and  that  the  omission  could 
not  be  supplied  by  amendment  on  parol  testimony 
alone  so  as  to  embrace  such  evidence,  since  courts  can 
only  amend  their  records  at  a  subsequent  term  "  in  a 
fact  which  apjiears  to  be  the  misprision  or  neglect  of 
the  clerk,"  unless  there  is  something  in  the  record  to 
amend  by.^^ 

A  rehearing  will  not  be  granted  by  the  Supreme 
Court  in  order  to  enable  a  party  to  have  the  record 
amended."^ 

Amendment  can  only  be  made  by  motion  in  the 
court  below.  When  it  is  made,  the  Supreme  Court 
can  by  certiorari  compel  the  clerk  to  certify  the 
amended  record."^^ 

A  suggestion  of  counsel,  at  the  argument  of  the 
cause  in  the  Supreme  Court,  that  a  statement  in  the 
bill  of  exceptions  is  erroneous,  and  was  improperly 

28  Polhemus  y.  Bank,  27  Mich  ^^  Warner  v.  Campbell,  39 
45.  Ind.  409. 

29  Brooksz;.  Bruyn,40I11.65.  32  Cluck    v.    State,    40   Ind. 

30  Hamilton  v.  Burch,  28  Ind.  266. 
234. 


Chap.  XIX. J    PRACTICE  IN  THE  APPELLATE  COURT.      663 

inserted  in  the  bill  after  it  was  settled  and  signed  by 
the  judge,  cannot  be  regarded  where  the  proper  steps 
to  amend  the  record  have  not  been  taken. ^^ 

§  903.  In  Missouri,  where  a  judge  refuses  to  sign 
a  bill,  but  permits  one  to  be  signed  by  bystanders,  it 
becomes  a  part  of  the  record.  But  otherwise  if  he 
refuses  this  permission,  in  which  case  the  original  is 
sent  up,  supported  by  affidavits  filed  in  its  support. 
The  permission,  when  given,  should  be  shown  by  the 
record.^* 

§  904.  In  Massachusetts,  a  petition  to  establish  the 
truth  of  disallowed  exceptions  to  be  argued  in  the  law 
term  of  the  Supreme  Court  for  the  commonwealth, 
must  be  entered  on  the  docket  within  a  reasonable 
time  after  they  are  taken,  and  at  the  same  term  at 
which  they  would  by  law  be  entered  if  duly  allowed 
and  signed.^^  County  terms  have  no  jurisdiction  in 
such  case. 

§  905.  A  bill  is  regarded,  in  the  appellate  court  of 
"Virginia,  as  a  demurrer  to  evidence  when  the  cause 
was  tried  below  without  a  jury,  and  all  the  evidence 
is  therefore  to  be  inserted  therein;"''  although, in  gen- 
eral, where  there  is  really  a  demurrer  to  evidence,  it 
has  been  held,  a  bill  is  unnecessary.   (See  42  Ind.  294.) 

§  906.  The  undertaking  on  which  suit  was  brought 
needs  not  be  copied  into  the  bill  when  it  is  embodied 
in  the  complaint.^^ 

^  Germann   v.  Schwartz,  21  ^  Hodge's  Ex  r.  v.  Bank,  22 

Wis.  669.  Gratt.  51. 

^  Downing  v.  Shacklett,  49  ^'  Smith  v.    Lisher,    23   Ind 

Mo.  86.  505. 

8°  Priest  V.  Groton,  103  Mass. 
630. 


664  BILLS   OF  EXCEPTION.  [Pabt  III. 

§  907.  The  rules  of  court  must  be  set  out  in  the 
bill  when  the  question  is  a  matter  of  practice  under 
those  rules ;  as,  for  example,  that  a  plea  is  offered  and 
refused  by  the  court  below  because,  as  alleged,  it  is 
not  offered  in  the  time  prescribed  by  the  rules  of  the 
court  for  the  filing  thereof. ■'^*^  And  such  rules  must  be 
certified  like  other  matters  of  exception.^® 

And  so  the  roll  of  attorneys  must  be  incorporated 
in  the  bill,  where  it  is  claimed  that  a  certain  person  is 
not  an  attorney  at  law.*° 

§  908.  A  bill  not  settled  according  to  the  rules 
of  court  may,  for  such  irregularity,  be  set  aside  on 
motion  in  the  Supreme  Court,  or,  under  some  circum- 
stances, be  sent  back  for  amendment.^'  And  if  a  bill 
has  been  in  any  way  obtained  fraudulently,  it  may  be 
set  aside,  if,  also,  it  appears  that  it  is  untrue;  not 
otherwise,*^  since  the  party  complaining  must  show 
not  merely  that  his  opponent  has  done  wrong,  but 
that  the  wi^ong  deprived  him  of  some  right.*^ 

§  909.  Where  papers  filed  with  a  bill,  and  referred 
to  by  it,  are  destroyed  by  fire,  the  exceptor  cannot  be 
allowed  to  supply  its  loss  by  ex  parte  affidavits.  The 
matter  would  seem  to  be  without  remedy  unless  some 
copy  has  been  preserved,  although  the  Supreme  Court 
of  Vermont  intimate  that,  perhaps,  where  the  loss  is 
wholly  without  the  fault  of  the  exceptor,  and  he  files 
aflidavits  in  time  for  counter  aflidavits  to  be  also  filed, 

^  Packet   Co.   v.  Sickles,  19  *^  Tollensen   v.  Gunderson,  1 

Wall,  611.  Wis.  110. 

39  Rutherford  v.  Pope,  15  Md.  ^  R.  R.  v.  Simpson,  11  Kan. 
581.  498. 

40  Lyon  v.  Boilvin,  2  Gil.  636. 


Chap.  XIX]    PKACTICE   IN  THE  APPELLATE  COUET.      665 

this  might  be  allowed.*^  Where  the  loss  or  absence 
of  a  paper  referred  to  is  not  accounted  for,  it  is  evi- 
dent there  is  no  help  for  it.^ 

A  defect  of  evidence  in  a  bill  taken  during  the 
progress  of  a  trial  may,  in  Virginia,  be  supplied  by 
reference  to  an  exception  taken  at  the  close,  and  con- 
taining all  the  evidence,  and  although  the  evidence 
considered  in  determining  the  question  raised  by  the 
prior  bill  had  not  been  introduced  when  the  exception 
was  taken.^^  But  this  matter  cannot  arise  under  the 
general  practice  of  saving  the  points  only  during  the 
trial,  and  putting  all  into  a  general  bill  at  the  close  of 
the  trial. 

§  910.  Where  exceptions  were  taken,  and  yet  exe- 
cution was  not  stayed,  and  four  days  before  the  ses- 
sion of  the  Supreme  Court  the  exceptor  notified  the 
opposite  party  that  he  would  not  prosecute  his  excep- 
tions, and  afterwards  desired  the  court  to  strike  the 
case  from  the  docket  as  a  misentry,  the  court  refused, 
and  held  that  he  must  elect  to  be  heard  on  the  excep- 
tions or  submit  to  an  affirmance  of  the  judgment  be- 
low, since  striking  off  would  not  settle  anything,  but 
leave  the  exceptor  free  to  bring  a  wi*it  of  error  after- 
wards.^ And  where  exceptions  are  allowed  with  a 
stay  of  execution,  and  the  exceptions  are  actually 
filed,  if  afterwards  they  are  abandoned,  the  recover- 
ing party  will  be  entitled  to  an  affirmance  to  save  liens 
on  property  ajid  bail  where  these  exist;  and,  to  save 

43  Fish  V.  Field,  19  Vt.  141.  45  Perkins's   Adm'r  v.   Haw- 

44  Walton   V.  Smith,  8   Ired.     kins's  Adm'r,  9  Gratt.  660. 
(N.  C  )  521.  46  Allen  y  Hard,  19  Vt.  606. 


6Q6  BILLS   OF   EXCEPTION".  [Part  IIL 

deciding  every  case  on  its  particular  facts,  this  rule 
is  strictly  observed  in  Vermont.*'' 

§  911.  It  is  ground  for  a  reversal  in  Massachusetts 
that  final  judgment  was  entered  after  exceptions  were 
allowed,  and  before  they  were  entered  in  the  Supreme 
Court.*« 

§  912.  A  remittitur  is  not  allowed  in  a  case  brought 
up  on  exceptions  in  Maine .^^  But  it  is  otherwise  in 
lowa.^" 

§  913.  A  governor's  proclamation  under  a  statute 
will  be  judicially  noticed  by  the  court,  even  when  used 
as  evidence,  and  so  needs  not  be  set  out  in  a  bill  of 
exceptions.^^  But  a  pardon  issued  while  exceptions 
are  pending  will  not  be  judicially  noticed,  but  must 
be  availed  of  by  the  prisoner's  waiving  his  exceptions 
and  pleading  the  pardon,  whereupon  he  will  be  dis- 
charged.^^ 

§  914.  In  l^ew  Hampshire,  on  a  case  made,  a  de- 
cision excepted  to  and  the  exception  thereon  may  be 
implied  from  what  is  stated,  and  need  not  be  expressly 
stated.^'^ 

§  915.  Although  it  is,  as  we  have  seen,  the  general 
rule  that  no  question  is  to  be  raised  above  which  was 
not  decided  upon  below,  yet  this  rule  is  not  to  be 
carried  to  the  extent  of  prohibiting  the  consideration 

*7  Batchelder    v.    Tenney,    1  ^^  Ragland    v.    Baringer,    41 

.Williams  (Vt.)  785.  Ga.  114 

*^  Gassett  v.  Cottle,  10  Gray,  ^^  Commonw.    v.   Lockwood, 

375.  109  Mass.  323. 

49  Greenleaf  v.  Hill,  30  Me.  ^^  Claggett  v.  Simes,  11  Fos- 

165.  ter,  56. 

^  McNorton    v.    Akers,    24 
Iowa,  369. 


Chap.  XIX]    PRACTICE  IN  THE  APPELLATE  COURT.      6G7 

of  collateral  questions  essential  to  the  decision,  and 
plainly  arising  on  the  facts.^*  And,  in  Massachusetts, 
it  has  been  held  that,  where  facts  stated  in  a  report 
of  the  evidence  adduced  at  the  trial  of  a  cause,  and 
conceded  by  both  parties,  show  an  objection  to  the 
plaintiff's  recovery  which  cannot  be  removed  by 
further  proof,  the  court  will  consider  such  objec- 
tion open,  though  it  was  not  raised  at  the  trial.**^ 

"  Fay  V.  Breckenridge,  T  B.         ^  Slater  v.  Rawson,  1  Met. 
Mon.  (Ky.)  33  450. 


SUPPLEMENT. 


PREFATORY  NOTE. 


I  have  much  reason  to  be  grateful  to  the  profession  for  the 
very  favorable  reception  this  work  has  had  from  them;  and, 
also  am  gratified  that  Messrs.  Mills  &  Co.  have  secured  tlie 
plates,  and  propose  to  issue  a  revised  edition.  At  present,  the 
only  revision  it  seems  to  need  is,  to  bring  it  down  to  the  pres- 
ent time  as  nearly  as  may  be,  which  can  be  done  sufficiently 
by  means  of  this  Supplement.  And,  for  convenience  of  refer- 
ence, I  subjoin  a  table  of  the  latest  reports  included  herein. 


TABLE 


or  LATEST  REPORTS  INCLUDED  IN  THIS  SUPPLEMENT. 


STATE.  VOL. 

Alabama 52 

Arkansas 30 

California 51 

Colorado 2 

Connecticut 48 

Delaware  (Iloust) 4 

Florida 15 

Georgia 58 

Illinois 82 

Indiana  (42  wanting) 54 

Iowa 45 

Kansas 17 

Kentucky  (Bush) 12 

Louisiana  (23  wanting) 25 

Maine 66 

Maryland 45 

Massachusetts 122 

Michigan 35 

Minnesota. 23 

Mississippi 53 

Missouri 64 

Montana 2 


STATE.  VOL. 

Nebraska 5 

Nevada. 12 

New  Hampshire  (55  wanting). . .  57 

New  Jersey  (Law) 39 

New  Jersey  (Equity) 28 

New  York 67 

New  York  (Barb.) 65 

New  York  (Hun.) 12 

North  Carolina 77 

Ohio 27 

Oregon 5 

Pennsylvania 83 

Rhode  Island 11 

South  Carolina 6 

Tennessee  (Heisk) 9 

Texas 47 

Texas  (Court  of  Appeals) 2 

United  States 94 

Vermont 49 

Virginia  (Grattan) 27 

West  Virginia 9 

Wisconsin 42 


CASES  CITED  IN  SUPPLEMENT. 


A. 

Adams  v.  State,  708. 
Alderson  v.  State,  714. 
Allen  V.  Woodson,  700. 
American  v.  Rimpat,  690. 
Amis  V.  Cameron,  703. 
Andrews  v.  Tedford,  677. 
Arvilla  v.  Spaulding,  716. 
Atwill  t\  Mcintosh,  683. 
Aultman  v.  Lee,  689. 

B. 

Ballin  v.  Taj^gart,  689. 
Bank  r.  Boyd,  636. 
Bank  V.  Kent,  701. 
Bank  v.  Schlev,  689, 
Banta  r.  Savage..  683. 
Bardenr.  R.  R.,685. 
Battershall  v.  Stevens,  677. 
Bates  r.  Ball,  697. 
Beach  r.  Branch.  704. 
Beattie^-.  Hill,  701. 
Beckvrith  v.  Talbott,  716. 
Belairv.  R.  R..  696. 
Belden  v.  Woodmansee,  679. 
Bel  don  v.  State,  770. 
Bell  V.  State,  710. 
Benhard  v.  Ins.  Co.,  689. 
Bill  r.  Mulford,  706. 
Bischoff  V.  Wethered,  689. 
Botkin  r.  Livingston,  705. 
Bowen  r.  Preston,  711. 
Boyd  V.  Carroll,  715. 
Briscoe  v.  Eckley,  679. 
Brinkley  v.  State,  694. 
Brooks  V.  State,  714. 


Brown  v.  Johnson,  711. 
Brown  v.  Kentfield,  709. 
Brown  v.  State,  714. 
BuflPettt;  R.  R.,  636. 
Bullock  V.  Hunter,  676. 
Burke  v.  Adm'r,  704. 
Burkw.  R.  R.,  714. 
Burt  V.  Boston,  686. 
Butler  V.  Cames,  709. 
Buxton  V.  Potter's  Works,  712. 
Byrnes  v.  Cahoes,  713. 


c. 

Caldwell  v.  State,  713. 
Canfield  v.  Thompson,  714. 
Carland  v.  Young,  685. 
Carson  v.  State,  697. 
Case  V.  R.  R.,  690. 
Castleman  v.  Sherry,  702. 
Cesme  v.  State,  699. 
Cloicago  V.  Brophy,  696. 
Clendenen  v.  Pancoast,  679. 
Cobb  V.  R.  R.,  6^4. 
Cole  V.  R.  R.,  681. 
Coleman  v.  Gilmore,  706. 
Collins  V.  Barnes,  679. 
Commonwealth  v.  Carroll,  691. 
Commonwealth  v.  Elliott.  679, 
Commonwealth  v.  Hall,  710. 
Cornish  v.  Ins.  Co.,  680. 
Courtenay  v.  Fuller,  679. 
Crissman  v.  McDonald,  697,  709. 
Crittenden  v.  Schermerhom,  716. 
Crow  V.  Stowe,  714. 
Crutchfield  v.  R.  R.,  703. 
Cunningham  v.  Washburn,  678. 
Cutler  v,  Callison,  701. 


672 


TABLE   OF   CASES   CITED   IN   SUPPLEMENT. 


D. 

Dale  V.  Patterson,  710. 
Daniels  v.  Woonsocket,  712. 
Davant  v.  Marlton,  701. 
Dimick  V.  R.  R.,  706. 
Doane  v.  Dunham,  681. 
Douglass  V.  Douglass,  710. 

E. 

Earll  V.  People,  696. 
Eiland  v.  State,  697. 
Eldred  v.  Malloy,  711. 
Eldridge  v.  Hawley,  697. 
Etter  V.  Armstrong,  711. 
Evans  v.  George,  696. 

F. 

Fanning  v.  Russell,  715. 
Famsworth  Co.  v.  Rand,  712. 
Ferguson  v.  Spear,  680. 
Ferrell  v.  State,  714. 
Flannagan  v.  Pearson,  688. 
Fleming  v.  R.  R.,684. 
Frame  v.  Badger,  701. 
Frink  v.  Alsop,  704. 

G. 

Galloway  v.  R.  R.,  689. 
Gardner  v.  Hazelton",  704. 
Garvey  v.  Wayson,  689. 
Gas  Co.  V.  Wheeling,  694. 
Gibbs  V.  State,  702. 
Gilbert  v.  Nagel,  686. 
Gilbert  v.  Bone,  683. 
GUchrist  v.  Gilchrist,  698,  714. 
Ginna  v.  R.  R.,  716. 
GUdden  v.  Child,  715. 
Goode  I'.  State,  714. 
Goodrich  v.  Cooke,  711. 
Griffin  v.  Chadwick,  713. 

H. 

Habbersham  v.  State,  704. 
Haines  r.  People,  675. 
Halcomb  v.  Teal.  711. 
Hale  V.  Rich,  682. 
Hansen  v.  Eastman,  678. 
Harper  t?.  Harper;  710. 


Harris  t\  Harris,  709. 
Harris  v.  State,  702. 
Hawkes  v.  Remington.  689. 
Hawks  V.  North  Hampton,  685. 
Hayes  v.  State,  697,  0-;9. 
Hemmingway  v.  Garth,  695. 
Henderson  v.  State,  703. 
Henry  v.  Davis,  690,  694. 
Hester  v.  Glasgow,  678. 
Hewett  V.  Johnson.  690. 
Heyne  v.  Blair,  683. 
Higgins  V.  Mahoney,  710. 
Hill's  Adm'r  v.  Nichols,  703. 
Hill  V.  Sprinkle,  695. 
Hmckley  v.  R.  R.,  685. 
Hobbs  V.  State,  714. 
Hofmeier  v.  Campbell,  704. 
Holcomb  V.  People,  6C6. 
Holesapple  v.  Fawbush,  712. 
Hopper  IK  Moore,  696. 
Hough  V.  Cook,  676. 
Houser  v.  State,  699. 
Hunt  V.  Salem,  685. 
Hutchins  v.  Masterson,  696. 
Hutts  V.  Hutts,  705. 
Hyatt  V.  Brown,  706. 
Hydraulic  Co.  v.  Orr,  688. 

I. 

Insurance  Co.  v.  Doyle,  677. 
Insurance  Co.  v.  Eai-U,  678. 
Insurance  Co.  v.  Francis,  697. 
Insurance  Co.  v.  Hogan,  689. 
Insurance  Co.  v.  O'Connor,  681. 
Insurance  Co.  v.  Sea,  707. 
Insurance  Co.  v.  Todd,  681. 
Irvin  V.  State,  709. 
Ives  V.  Vanscoyoc,  715. 


Jackson  v.  Allen,  689. 
Jackson  v.  Clark,  710. 
Jelleyv.  Roberts,  711. 
Jenness  v.  Shaw,  679. 
Johnson  v.  Bell,  696. 
Jones  V.  Ins.  Co.,  704. 
Jowers  V.  Baker,  690. 
Joyner  v.  Great  Barrington,  685. 

K. 

Kaufman  v.  Adm'r,  697. 
Keenan  v.  Hayden,  681. 


TABLE   OF   CASES   CITED    IN   SUPPLEMENT. 


673 


KeWogg  V.  Curtis,  685. 
Kendall  v.  Brown,  695. 
Kingman  v.  Kingman,  676. 
Knight  V.  Luce.  680. 
Kohlhepp  V.  W.  Roxbury,  678. 
Krech  v.  R.  R.,  698. 

L. 

Lalonette's  Heirs  v.  Lipscomb,  704. 

Lange  v.  Kaiser,  709. 

Larrabee  r.  Sewell.  683,  685. 

Latham  v.  Roach,  698. 

Lellyet  v.  ]\Iarkham,  704. 

Lindsay  r.  State,  699. 

Lipprant  v.  Lipprant,  700. 

Little  V.  McGuire,  696. 

Long  V.  State,  692. 

Lowrey  v.  Megee,  677. 

Luke  V.  CalhomiCo.,  701. 

Lynch  v.  Baldwin,  683. 

Lynch  v.  Kennedy,  710. 

Lyon  V.  George,  676. 

M. 

Mackey  v.  People,  699. 
Macomber  v.  Nichols,  685. 
Manuf  g  Co.  v.  Vroman,  694. 
Marble  v.  Fay,  710. 
Mathews  v.  Story,  693. 
Mayor  v.  Inman,  690. 
Mayor  v.  Hill,  690. 
McArthur  v.  Craigie,  704. 
McCall  V.  Ins.  Co.,  713. 
McClure  v.   Williams.  700. 
McCraw  v.  Welch.  704. 
McDonald  i\  Beall,  692. 
McGonnigle  v.  Arthur,  714. 
Mcintosh  V.  Commissioners,  715. 
Mclntvre  v.  Talbot,  682. 
McKinly  v.  Snyder,  694. 
Mcilahon  v.  Spinning,  710. 
McNamara  v.  R.  R.,  684. 
Mc Williams  v.  Hoban.,  683. 
Mentzurg  v.  R.  R.,710. 
Merriam  v.  Lumber  Co.,  676,  698. 
Men-ittt;.  State,  702. 
Meyers  v.  Biggs,  713. 
Meyers  v.  King,  679, 
Miles  V.  State,  695. 
Miller  ;;.  Balthasser,  689. 
Mitchell  V.  State,  714. 
Moateith  v.  Bax,  683. 
Moore  V.  Faggard,  695. 

43 


Mooring  v.  State,  705. 
Morgan  v.  Smith,  695. 
Morrow  v.  State,  716. 
Murray  v.  Commonwealth,  699. 

New  V.  Potts,  682. 
Newman  ?;.  Wallace,  682. 
Nichol  V.  Crittenden.  695. 
Nichol  V.  Munsel,  696. 
Nisbet  V.  Brown,  715. 
Norton  v.  Mallory,  716. 

o. 

Ocheltree  v.  McClung,  709. 
Ogden  V.  Kirby,  677,  680. 
Osgood  V.  Toole,  704. 
O 'Shields  v.  State,  697. 


Packer  v.  Locomotive  Works,  691 . 
Pallis  V.  Tice.  704. 
Palmer  v.  Meiners,  676,  702. 
Pattonj?.  Mf'gCo.,  713. 
Payne  v.  Fiowinov,  704. 
People  V.  Cleveland,  698. 
People  V.  Doyle,  698. 
People  V.  Gettv.  715. 
People  V.  Ivey.'675,  696. 
People  V.  Welch.  698. 
Pratt  V.  Chase,  681. 
Price  r.  R.  R.,705. 

R. 

RafFerty  v.  People,  701. 
Ransone  v.  Christian,  704. 
Reed  v.  Canal,  709,  712. 
Reed  r.  Hawkins,  705. 
Regular  v.  State,  692. 
Rhinehart  v.  State,  711. 
Rice  V.  Olin,  699. 
Robinson  v.  R.  R.,  709. 
Robinson  t;.  State,  691. 
Rohrbacker  v.  Ware,  677. 
Roop  V.  Delahaye,  704. 
Root  V.  Burt.  679. 
Rowland  v.  Plummer,  703. 
R.  R.  V.  Benton.  686. 
R.  R.  V.  Brooks,  676. 
R.  R.  V.  Goddard,  696. 


674 


TABLE   OF   CA.SES   CITED    IN   SrPPLEMENT. 


R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  V. 
R.  R.  jj. 
Rupe  V. 
Russell 


Judson,  676,  702. 
Kunkel,  697. 
Lansing,  712. 
Moffit,  700. 
Pointer,  684. 
Rogers,  711. 
Ragsdale.  711,  713. 
Rowland,  712. 
Shelton,  693. 
Shuckraan,  699. 
Stingei-,  684. 
Bumell,  702. 
V.  State,  691. 

S. 


Saffordr.  Grout,  712. 
Sargent  v.  Machias,  705. 
Sawyer  v.  Iron  Works,  716. 
Schwartz  v.  Ins.  Co.,  704. 
Shaw  V.  People,  6(6. 
Sherlock  v.  Bank,  709. 
Skelley  v.  Boland,  700. 
Smith  V.  Conway,  685. 
Smith  V.  State,  695,  713. 
Smith  V.  R.  R.,  712. 
Snowr.  R.  R.,  716. 
Snyder  v.  Finley,  704. 
Sparks  v.  Dawson,  702. 
Spencer  v.  Humiston,  696. 
Spencer  t'.  Traftbrd,  700. 
Stack  V.  People,  715. 
Stadden  v.  Hazard,  677. 
Stanton  v.  Embrey,  711. 
Starkey  v.  De  Graff,  693. 
State  V.  Ah  Mook,  698,  714. 
State  V.  Allen.  70;5. 
State  V.  Bamett,  711. 
State  V.  Butner,  697. 
State  V.  Jones,  703,  705. 
State  V.  Kellerman,  696. 
State  t?.  Maloy,  693. 
State  V.  Mitchell,  698. 
State  V.  New  Haven  Co.,  682. 
State  V.  Pike,  712. 
State  V.  Potter,  702. 
State  V.  Preston,  706. 
State  r.  R.  R.,  705. 
State  V.  Raymond.  698. 
State  V.  Stickley,  705. 


Steele  v.  R.  R.,  696. 
Stirman  v.  Cravens,  714. 
Storm  V.  U.  S.,  706. 
Straus  V.  Minzesheimer,  690. 
Summersell  v.  Fish,  700. 
Swanner  v.  Swanner,  679. 

T. 

Thompson  v.  Force,  699. 
Thurber  «;.  R.  R.,  684. 
Turner  v.  People,  707. 
Tuscaloosa  Co.  v.  Logan,  714. 

Y. 

Vason  V.  Beall,  696. 
VanTuyle  v.  Quinton,  69?. 
Van  Wey  v.  State,  705 

w. 

Waldron  v.  Marcier,  793. 
Walker  v.  Moors,  710. 
Walters  v.  R.  R.,  685,  692. 
Wannack  v.  Wilson,  702. 
Warlick  v.  Peterson,  681. 
Warmuck  v.  Macon,  702. 
Warmuck  v.  State,  703. 
Watkins  v.  Paine,  695, 
WaiTent;.  Coal  Co.,  679. 
Webber  v.  Reed,  712. 
Weeks  v.  Cottingjiam,  690. 
Wheeler  v.  Joy,  709. 
White  V.  Boston,  682. 
White  V.  State,  703. 
Whitney  v.  Cook,  689,  704. 
Willard  v.  Randall,  680. 
WiiJey  V.  Beach,  682. 
Wilson  V.  Bauman,  693. 
Wither  v.  Brooks,  705. 
Woodworth  v.  Byerly,  716. 
Woods  V.  Boston,  685. 
Woolfalk  V.  Wright,  714. 
Wright  V.  Brosseau,  697.. 

Y. 

Yates  V.  Pelton,706. 


sup]ple]\j:en't. 


CHAPTER  I. 

Questions  of  Law  and  Fact. 

§  1.  It  will  be  reraemembered  that  the  court  has  no  right 
in  any  case  to  submit  a  question  of  law  to  the  jurj',  and 
therefore  it  cannot  be  allowed  to  submit  evidence  hypotheti- 
cally  to  the  jnr}'^,  to  be  considered  by  them,  if  they  judge 
it  applicable  to  the  case  in  hand,  but  if  they  judge  other- 
wise, to  be  disregarded.  The  admissibility,  and  hence  the 
pertinency  or  relevancy  of  the  evidence  is  wholly  for  the 
court.'  When  the  court  has  admitted  it,  the  jury  are  to  judge 
of  its  credibility  and  its  sufficiency.  And  they  are  to  be  left 
wholly  free  to  judge  of  the  credibility  of  all  witnesses  testify- 
ing in  the  case  at  bar,  and  where  there  is  a  direct  conflict  in 
testimony,  they  are  to  determine  the  credibility  from  the  cir- 
cumstances usually  attending  such  transactions  as  the  one  in 
suit,  from  the  inherent  reasonableness  of  the  testimony  on  the 
different  sides  respectively,  and  from  all  the  available  circum- 
stances which  bear  upon  the  question.'  And,  if  the  evidence 
is  evenly  balanced,  it  is  no  part  of  the  court's  province  to  bol- 
ster up  in  the  slightest  degree  the  testimony  of  either  side, 
even  by  an  instruction  so  trivial  in  appearances  that  "  it  is  not 
always  to  be  expected  of  a  witness  that  he  should  remember 

'People  V.  Ivey,  49  Cal.,  56.  "Haines  v.  People,  82  111.,  430. 


676  SUPPLEMENT. 

the  dates  of  occurrences  a  year  back.'"     The  question  must 
be  left  wholly  unbiassed  by  any  influence  on  tlie  part  of  the 
court,  direct  or  indirect.     And  the  court  is  not  to  tell  tlie  jury 
what  is  the  better  kind  of  evidence  on  a  question  in  contro- 
versy.*    Kor  is  it  proper  to  instruct  a  jury  that  if  the  circum- 
stances of  the  testimony  "  strike  their  minds  as  being  an  un- 
reasonable story  to  the  extent  of  removing  a  fair  presumption 
of  its  truth  from  their  minds,"  they  should  find,  etc.*     For  if 
there  is  in  the  nature  and  character  of  the  testimony  intro- 
duced sufficient  fairly  to  raise  any  issue  proper  for  their  con- 
sideration, they  are  to  be  left  to  judge  for  themselves  the  bear- 
ings of  the  evidence  upon  that  issue.*     Hence  it  is  erroneous 
for  a  court  to  instruct  that  if  the  jury  believes  the  testimony 
of  a  certain  witness,  their   verdict   should  be  for  a  particular 
party.''     This  is  invading  the  province  of  the  jury.'     "Con- 
flicting evidence  is  to  be  weighed  by  the  jury,  and  the  court 
would  be  going  beyond  its  province  if  it  undertook  to  instruct 
them  what  inference  they  should  draw  from  the  fjicts  submit- 
ted to  them,  or  what  weight  or  credibility  thej'  should  attach 
to  the  evidence  ofiered  by  the  respective  parties."'     Nor  can 
the  court,  unless  there  is  a  total  want  of  evidence,  undertake 
to  direct  the  verdict  and  declare  that  "  the  evidence  is  not 
legally  sufficient  to  entitle  the  plaintiff"  to  recover."^     And,  on 
the  same  principle,  the  court  cannot  determine  the  prepon- 
derance of  the  evidence,'  which  would  be  to  usurp  the  func- 
tions of  the  jury  in  toto,  and  so  it  is  a  question  of  foct  whether 
the  testimony  of  a  legatee  is  sufficient  to  overcome  the  pre- 
sumption of  the  payment  of  a  legacy.^ 

§  2.  However,  it  is  held  that  where  a  controversy  depends 
on  written  correspondence  put  in  evidence,  the  authenticity  and 
bearing  of  which  are  undisputed,  the  court  is  to  expound  it, 

3Shaw  V.  People,  81  TIL,  150.  ^Lvon  v.  Georgia.  44  Md.,  303. 

♦R.  R.  V.  Brooks,  81  III.,  245.  'Bullock  v.  Hunter,  Id.,  428. 

s Palmer  v.  Memers.  17  Kan.,  481.  'Hough  v.  Cook,  69  111.,  581. 

*Merriam».  Lumber  Co.,  2JMinn.,         '  Kingman  w.  Kingman,  121,  Mass., 

321.  249. 
7R.  R.  V.  Judson,  84  Mich.,  507. 


QUESTIONS   OF   LAW   AND   FACT.  677 

and  instruct  the  jury  directly  and  distinctly  as  to  its  legal 
effect  upon  the  issue,  and  not  to  leave  it  to  the  jury  to  interpret 
and  construe  it.'  This  seems  to  rest. on  the  general  power  and 
duty  of  the  court  to  interpret  and  construe  all  written  instru- 
ments as  matter  of  law,  which  is  the  settled  rule,  although 
where  no  injury  is  done  by  leaving  the  question  of  the  legal 
effect  of  an  instrument  to  a  jury — that  is,  if  on  inspection  it 
appears  that  no  different  verdict  could  have  been  found  con- 
sistently with  all  the  facts,  a  court  of  review  will  not  disturb 
their  verdict  because  of  such  submission  of  the  instrument  to 
their  interpretation."  But  interpretation  usuall}'  belongs  to 
the  court,  and  where  the  language  of  a  writing  is  ambiguous, 
the  court  should  inform  the  jury  of  its  meaning.*  And,  so,  it 
was  held  that  the  court  erred  in  submitting  a  policy  of  insur- 
ance to  the  jury  to  determine  whether  a  word  was  written  six, 
and  so  was  sensible,  or  M^as  writted  oix^  and  therefore  was  de- 
void of  meaning.*  Even  the  meaning  of  ordinary  words  in  a 
written  contract  must  be  determined  by  the  court,  as,  for  ex- 
ample, the  meaning  of  the  word  "feeding"  in  a  contract  for 
the  sale  of  cattle.'  Also,  the  duties  enjoined  by  the  contract 
must  be  decided  by  the  court.  And  so  it  was  held  error  for 
the  court  to  submit  to  the  jury  whether  the  plaintiff  "was 
bound  to  properly  and  carefully  feed,  shelter,  herd  and  protect 
said  sheep  and  their  increase,"  by  the  written  contract  in 
evidence.*  And  also,  where  the  question  was  submitted 
whether  a  certain  writing  was  a  guaranty  or  not,  it  was  held 
erroneous.* 

§  3.  But  parol  evidence  to  impeach  a  written  instrument, 
goes,  necessarily,  to  the  jury;  as,  for  example,  the  official  cer- 
tificate of  acknowledgement  of  a  deed.  And  where  a  court 
decided  that  the  parol  evidence  offered  for  that  purpose  was 

3  Battershatl  v.  Stephens,  34  Mich.,  ^  Lowry  v.  Megee,  52  Tnd.,  107. 

73.  ^  Rohrabacher   v.  Ware,  37  lowii, 

tStadden  v.  Hazard,  34  Mich.,  76.  88. 

sodden  t7.  Kirby,  79  III.,  556.  9  Andrews  v.  Tedford,    37   Iowa, 

«Ins.  Co.  V.  Doyle,  30  Mich.,  159.  314. 


678  SUPPLEMENT. 

conclusive  as  to  the  validity  of  the  certificate,  it  was  held  error 
as  withdrawing  a  question  of  fact  from  the  jury.' 

§  4.  And  so  as  toextecnal  circumstances  bearing  upon  the 
terms  of  a  contract.  The  court  determines  what  those  terms 
mean,  but  whether  they  are  fulfilled  or  not  belongs  to  the  jury. 
For  example,  where  the  contract  in  writing  was  to  complete  a 
building  ready  for  occupancy,  it  was  held  to  be  a  question  for 
the  jury  whether  the  erection  of  a  certain  out-building  was 
necessary  to  make  it  ready  for  occupancy." 

§  5.  On  the  general  principle,  the  construction  of  a  town 
plat  belongs  to  the  court;  for  "  if  the  plat  is  not,  in  the  strict 
and  narrow  sense  of  the  word,  a  written  instrument,  it  is  so 
closely  analogous  to  one  as  to  fall  within  the  reason  of  and  be 
governed  by  the  general  rule  which  confides  the  construction 
of  written  instruments  to  the  court  and  not  to  the  jury.'" 
But  in  a  case  where  a  deed  partially  describes  land,  and  partly 
refers  to  a  plan,  it  has  recently  been  held  in  Massachusetts 
that  the  question  whether  the  description  of  the  land  by  words 
and  by  reference  to  the  plan  is  sufticient  to  identify  the  land 
with  reasonable  certainty,  is  a  question  of  fact,^  which  seems 
to  be  an  exception  to  the  general  rule. 

§  6.  As  to  the  meaning  of  an  ordinance,  as  applicable  to  an 
act  which  is  claimed  to  be  a  violation  thereof,  the  following  is 
the  syllabus  of  a  recent  Massachusetts  case:  "On  a  complaint 
for  standing  on  a  street  and  selling  newspapei's  in  violation 
of  an  ordinance  of  the  city  of  Boston  providing  that  '  no  per- 
son shall  stand  on  an}'  street  for  the  sale  of  any  article  unless 
duly  licensed,'  a  witness  for  the  government  testified  that  the 
defendant,  on  the  day  named  in  the  complaint,  came  into  a 
certain  street  and  sold  newspapers;  that  he  would  stand  for 
about  five  minutes  and  then  move  a  little,  moving  backwards 
and  forwards  within  a  space  of  fifteen   feet.     The  judge  in- 

'  Hester  r.  Glasgow,  79  Pa.  St.,  83.  3  Hansen  v.  Eastman,    21   Minn., 

'Cunningham  v.   Washburn,   119      511. 
Mass.,  224.  ■♦Kohlhepp  v.  West  Roxbury,  120 

Mass.,  596. 


QUESTIONS   OF   LAW    AND   FACT.  6.7^ 

stnicted  tlie  jury  that  if  the  defendant  stopped  in  the  manner 
described  by  the  witness  for  the  government,  he  was  guilty 
of  standing,  in  violation  of  the  ordinance.  Held,  that  the 
ruling  was  erroneous;  and  that  the  case  should  have  been 
submitted  to  the  jury  upon  all  the  evidence,  with  proper  in- 
structions.'' ' 

§  7.  In  regard  to  a  parol  contract  the  terms  are  for  the 
jury,  although  even  as  to  this  the  legal  eftect  and  construc- 
tion are  for  the  court.®  As,  for  instance,  what  is  a  "  legal 
transfer"  of  property  is  held  to  be  a  question  which  a  jury  is 
incompetent  to  decide.'  An  agreement  to  compromise  a  suit 
belongs  to  the  jury,  it  seems.* 

§  8.  Where  there  are  a  written  agreement  and  a  contem- 
poraneous parol  agreement,  it  has  been  held  a  question  of  fact 
for  the  jury  whether  allowances  made  subsequently  and  in 
excess  of  those  made  in  the  written  contract,  were  intended  by 
the  parties  as  an  adoption  of  the  verbal  agreement  to  modify 
the  terms  of  the  written  one.*  And  where  there  is  a  doubt 
as  to  the  intention  of  parties  to  a  verbal  contract  tlie  question 
is  for  the  jury  to  decide  what  agreement  was  made."  And  so, 
whether  a  vendor  of  land  had  taken,  in  full  satisfaction  for  the 
price,  a  promissory  note  indorsed  "without  recourse,"  is  held 
a  question  of  fact;"  and  whether  the  acceptance  of  an  offer 
was  conditional  or  absolute,"  and  whether  certain  payments 
were  conditions  precedent  or  uot.^  It  belongs  to  the  jury  to 
determine  who  are  the  parties  to  a  contract,  as,  for  instance, 
whether  credit  was  given  to  a  contractor,  or  his  sub-con- 
tractors.^ Also,  whether  there  was  a  warranty  verbally  given.* 
And,  where  the  condition  of  a  railroad  subscription  is  that  the 
railroad  should  be  completed  to  a  certain  point  by  a  certain 

5 Commonwealth    v.    Elliott,     121  "  Root  ?\  Burt,  118  Mass.,  521. 

Mass.,  867.  '  Clendenen  v.  Pancoast,    75  Pa. 

efielden  v.  Woodmansee,  81  111.,  St.,  215. 

27.  ^'Jenness  v.  Shaw,  35  Mich.,  20. 

7 Myers  r.  King,  42  Md..  66.  3 Briscoe  v.  Eckley,  35  Mich.,  112. 

^CoUins  V.  Barnes,  83  Pa.  St.,  19.  ♦Warren  v.  Coal  Co.,  83  Pa.  St., 

'Courtenay  v.  FuUer,  65  Me.,  160.  437. 

"Swanner  v.  Swanner,  50  Ala.,  67. 


680  SUPPLEMENT. 

day,  it  is  a  question  of  fact  whether  tlie  condition  was  fullilled 
by  the  completion  of  the  road  to  the  given  point  at  the  time 
designated.'  Whetlier  a  husband  acted  as  the  agent  of  liis 
wife,  in  a  particular  transaction,  is  for  the  jury  to  decide.' 
And,  where  a  seller  agrees  to  sell  an  article  at  the  "  cost 
price,"  it  is  a  matter  of  fact  whetlier  the  sale  was  at  actual 
cost,  or  at  a  sum  falsely  declared  to  be  the  cost  by  the  seller. 
In  such  a  case  the  court  said:  "A  sale  at  cost  is  a  valid  sale 
for  whatever  the  cost  may  actually  be,  when  correctly  ascer- 
tained, although  supposed  to  be,  or  represented  to  be,  a  differ- 
ent sum,  at  the  time  of  sale;  and  both  parties  are  bound  by 
that  standard  unless  the  contract  can  be  avoided  for  fraud  or 
mutual  mistake.  That  the  price  can  be  made  certain  makes 
it  certain;  but  a  sale  for  a  fixed  price  and  definite  considera- 
tion binds  the  parties  at  such  price,  although  the  sum  paid 
was  supposed  to  be  the  cost  price,  when  it  was  not.  In  the 
one  case  the  supposed  'cost'  merely  induces  a  contract  to  be 
made;  in  the  other  the  real  cost  becomes  a  material  part  and 
condition  of  the  contract  itself."  ' 

§  9.  Whether,  under  a  condition  of  a  policy  of  insurance 
that  any  increase  of  hazard  or  material  change  shall  avoid  the 
policy,  the  non-occupancy  of  the  premises  when  it  was  de- 
stroyed by  fire,  was  such  an  increase  of  risk,  or  material 
change,  as  to  amount  to  a  violation  of  the  condition,  is  a 
question  of  fact.' 

§  10.  It  is  held  that,  "  on  the  issue  whether  a  person  era- 
ployed  to  burn  the  brush  upon  the  land  of  another  had  au- 
thority also  to  burn  the  brush  within  the  limits  of  a  highway 
adjoining,  from  which  it  is  separated  by  a  wall,  the  question 
whether  a  direction  by  the  owner  to  '  clear  up  the  land '  in- 
cluded land  within  the  limits  of  the  highway  is  for  the  jury, 
although  the  estate  of  the  owner  extended  to  the  middle  of  lAie 
highway."  ^ 

7  Ogden  V.  Kirby,  79  111.,  556.  '  Cornish  v.  Ins.  Co.,  10  Hun.,  466. 

8  Ferguson  v.  Spear,  65  Me.,  277.         *  Knight  v.  Luce,  116  Mass.,  586. 

9  WiUard  v.  RandaQ,  65  Me.,  86. 


QUESTIONS    OF    LAW    AND    FACT.  681 

§  11.  The  question  of  waiver  being  one  of  intent,  to  be  in- 
ferred from  surrounding  circumstances,  as,  for  instance,  con- 
cerning irregularities  of  proof  of  loss  under  an  insurance  policy, 
belongs  to  the  jury  as  a  question  of  fact.'  And  so,  as  to  a 
waiver  of  demand  and  notice  in  regard  to  a  promissory  note; 
it  is  not  legally  to  be  inferred,  from  doubtful  or  equivocal  acts 
or  circumstances,  but  the  jury  are  to  be  left,  in  such  case,  to 
determine  the  matter.* 

§  12.  The  sufficiency  of  an  acknowledgment  in  writing  to 
take  a  case  of  a  promissory  note  out  of  the  bar  of  the  statute 
of  limitations,  is  held  to  belong  to  the  court  as  a  question  of 
law;  but  it  is  a  question  of  fact  for  the  jury  to  decide  whether 
a  particular  acknowledgment  refers  to  the  note  on  which  the 
action  is  brought.^ 

§  13.  In  regard  to  notice  and  knowledge,  it  is  held  that 
where  a  notice  is  in  writing,  or  where  the  facts  are  not  con- 
troverted, the  sufficiency  of  the  service  thereof  is  for  the  court; 
but  if  either  the  fact  of  service  or  the  authority  of  the  agent 
who  made  it,  or  of  the  agent  of  an  incorporated  company  on 
whom  it  is  served,  is  disputed,  the  jury  must  determine  the 
matter.*  And,  where  one  took  out  an  insurance  policy  on 
property  under  mortgage,  and  the  policy  provided  that  a  fail- 
ure on  the  part  of  the  insured  to  notify  the  company  of  any 
mortgage  existing  would  avoid  the  contract  of  insurance,  the 
fact  whether  the  company  knew  of  the  mortgage  when  it 
issued  the  policy  is  to  be  determined  by  the  jury.'  And, 
where  goods  delivered  under  an  executory  contract  of  sale  are 
not  of  the  prescribed  quality,  and  the  purchaser  notifies  the 
seller  to  take  them  back,  it  is  for  the  jury  to  say  whether  such 
notice  was  in  apt  or  reasonable  time  or  not.*  And  it  belongs 
to  the  jury  to  decide  whether  the  owner  of  a  vicious  dog  had 
a  knowledge  of  the  animal's  propensity  to  mischief  and  injury.* 

sinsurance    Co.   v.  O'Connor,    29  ^Cole  v.  R.  R.,  38  la.,  311. 

Mich.,  241.  7  Ins.  Co.  v.  Todd,  83  Pa.  St.,  212. 

4 Pratt  V.  Chase,  122  Mass.,  265.  8j)oane  j,  Dunham,  79  111.,  131. 

5  WarUck  v.  Peterson,  58  Mo.,  408.  'Keenan  v.  Hayden,  39  Wis.,  559. 


682  SUPPLEMENT. 

And,  so,  in  an  action  for  an  injury  by  a  defective  sidewalk  un- 
der repair,  the  sufficiency  of  a  barrier  erected  to  give  notice  to 
passers-by  of  the  extent  of  the  repairs  and  the  consequent 
danger,  is  a  question  of  fact.' 

§  14.  Where  an  action  is  brought  on  a  promissory  note  on 
the  face  of  wliich  is  an  apparent  alteration  in  the  date,  it  is 
for  the  jury  to  say  whether  the  alteration  was  made  before  or 
after  the  delivery.'' 

§  15.  As  to  adverse  possession,  its  limits  or  boundaries  are 
to  be  decided  by  the  jury.'  And,  also,  under  wliich  of  two 
conflicting  titles — one  by  deed,  the  other  by  mere  adverse 
possession — one  is  in  possession  of  land." 

§  16.  A  matter  of  locality  may,  in  some  circumstances,  be 
a  mixed  question  of  law  and  fact,  as,  for  example,  whether  a 
certain  place  is  a  railroad  station  within  the  meaning  of  a 
statute  prohibiting  a  railroad  company  from  abandoning  a 
station.* 

§  17.  And  so  as  to  what  is  a  perversion  of  a  power  estab- 
lished by  will,  it  is  a  question  of  law  for  the  court;  but, 
whether  the  circumstances  of  a  particular  case  amount  to  a 
proof  of  such  perversion  is  a  question  of  fact  for  the  jury.' 

§  18.  Where  the  question  of  necessaries  arises,  as,  for 
example,  whether  a  sewing  machine  is  such  a  necessary  as 
that  a  husband  can  be  compelled  to  pay  for  it,  the  matter 
must  be  determined  by  the  jury.' 

§  19.  An  instruction  to  the  jury,  that  "  it  is  incumbent  on 
the  plaintiff  to  make  out  his  case  so  far  as  lie  has  the  affirma- 
tive, by  a  preponderance  of  testimony  "  is  erroneous,  unless 
the  court  will  likewise  inform  them  in  what  respect  the  plain- 
tiff has  the  affirmative.  On  this  the  Illinois  court  has  said, 
"whether  the  plaintiff  or  defendant  has  the  affirmative  on  a 

'White  V.  Boston,  122  Mass.,  491.  s State  v.  New  Haven  etc.  Co.,  41 

'Newman  f.  Wallace,  121  Mass.,  Conn.,  187. 

323.  6  New  v.  Potts,  58  Ga.,  420. 

3 Hale  V.  Rich.,  4S  Vt.,  218.  ?  Willey  v.  Beach,  112  Mass.,  559. 
^Mclntire  v.  Talbot,  62  Me.,  312. 


QUESTIONS    OF    LAW   AND    FACT.  683 

particular  issue,  is  a  question  of  law  for  the  court,  and  not 
one  of  fact  for  the  jury,  and  it  is  not  proper  that  it  should  be 
left  for  them  to  determine,  whether  the  plaintiff  or  defendant 
has  the  atiirmative,  or  to  what  extent  it  is  incumbent  on  either 
to  have  the  preponderance  of  evidence  "  * 

§  20.  The  intention  of  a  landlord  in  interferino;  with  the 
tenant's  possession  and  enjoyment  of  tlie  demised  premises, 
fixing  the  character  of  the  landlord's  act  as  a  trespass  or  an 
eviction,  must  be  determined  by  a  jury,  on  a  question  whether 
acts  complained  of  do,  or  do  not,  amount  to  such  an  eviction 
as  to  release  the  tenant  from  the  payment  of  rent," 

§  21.  And,  indeed,  intention  is  usually,  or  always,  a  ques- 
tion of  fact.  And  it  is  so  in  regard  to  fraud  in  written  in- 
struments, as  for  example,  as  to  a  conveyance  from  husband 
to  wife  alleged  to  be  fraudulent.'  In  all  cases  fraud  must  be 
proved  and  the  evidence  submitted  to  the  jury .^  For  no  rep- 
resentations however  false,  amount  to  fraud  in  law  unless  it 
be  of  a  fact  material  to  the  contract  or  transaction,  and  it  is 
for  the  jury  to  say  whether  a  representation  was  intended  to 
be  the  statement  of  a  fact,  and  so  determine  from  all  the  cir- 
cumstances whether  there  really  was,  or  was  not,  an  actual 
fraud.'  And  thus  it  is  in  regard  to  malice,  which  likewise 
rests  in  the  intention,  as  for  example,  where  one  is  in  a  posi- 
tion to  make  a  privileged  communication  to  another,  and  does 
so  by  a  letter,  and  the  question  is  whether  the  communication 
was  fairly  or  maliciously  made,  the  jury  is  to  decide.*  And 
correspondingly  in  an  action  for  malicious  prosecution,  the 
matter  of  probable  cause  is  to  be  determined  by  the  jury.^ 
And  if  the  facts  proved  are  capable  of  different  inferences,  it 
is  for  them  to  determine  what  would  be  the  belief  and  action 
of  prudent  men  under  like  circumstances.' 

§  22.     In  regard  to  negligence,  it  is  held  to  be  a  question  of 

^Gilbert  v.  Bone,  79  111..  345  <  Atwill  v.  Mackintosh,  120  Mass., 

"Lynch  v.  Baldwin.  69  111.,  210.  177. 

'Monteith  v.  Bax.  4  Neb.,  166.  s  Mc Williams  v.  Hoban,  42  Md.,  56. 

"Larrabee  v.  Sewall,  66  Me.,  384.         *Heyne  v.  Blair,  60  N.  Y.,  19. 
sBanta  v.  Savage,  12  Nev.,  152. 


684  '  SUPPLEMENT. 

law  where  the  facts  are  admitted,  or  established  by  uncontra- 
dicted evidence.'  But  as  to  what  acts  of  a  shipper  constitute 
negligence  releasing  the  carrier  from  liabilitj',  it  must  be  passed 
upon  by  the  jury.*  The  general  rule  is  thus  stated  by  the 
Kansas  coui't:  "Tliis  question  of  negligence  is  said  to  be  a 
mixed  question  of  law  and  fact;  when  the  facts  are  disputed 
it  makes  a  question  for  the  jury;  wliere  the  facts  are  undis- 
puted, and  but  one  deduction  is  to  be  drawn  from  them,  there 
is  simply  a  question  of  law  for  the  court.  But  where  the  facts 
though  undisputed  are  such  that  when  taken  singly  or  in  com- 
bination different  minds  will  come  lo  different  conclusions  as 
to  the  reasonableness  and  care  of  the  party's  conduct,  the  ques- 
tion is  one  which  may  properly  be  left  to  the  determination 
of  the  jury."'  And  the  New  York  court  say:  "  The  question 
of  negligence  depends  very  much  upon  circumstances,  and  is 
addressed  to  the  judgment  of  men  of  ordinary  prudence  and 
discretion,  and  is  ordinarily  for  the  jury.  When  the  inferences 
to  be  drawn  from  the  proof  are  not  certain  and  incontro- 
vertible, it  cannot  be  decided  as  a  question  of  law  by  direct- 
ing the  verdict  or  non-suit,  but  must  be  submitted  to  the 
jury." '  And  it  is  the  same  as  to  direct  negligence  or  contrib- 
utory negligence.^ 

Where  the  precise  duty  is  determinate  and  the  same  under 
all  circumstances,  as  for  example  a  neglect  to  sound  a  whistle 
required  by  law,  the  question  of  negligence  is  a  question  of 
law,^  although  of  course  it  is  for  the  jury  to  decide  upon  the 
fact  whether  or  not,  the  whistle  was  actually  sounded.  Where 
there  is  no  dispute  the  court  must  decide.  Thus  in  regard  to 
negligence  in  setting  up  the  defense  of  the  invalidity  of  a 
promissory  note,  the  Maine  court  said  on  the  matter:  ''What 
constitutes  negligence  in  a  case  like  this  where  the  facts  are 
clear  and  unequivocal,  is  a  question  of  law.  The  testimony 
of  the  defendant  is  uncontradicted;    no  fact  is  in  doubt  or 

7Fleming  v.  R.  R.,  49  Cal..  253.  •  Thurber  v.  R.  R.,  60  N.  Y.,  331. 

«Cobb  i\  R.  R.,  33  la.,  603.  "  McNamara  v.  R.  R.,  50  Cal.,  581. 

»R.  R.  V.  Pointer,  U  Kaa.,  53.  sR.  R.  v.  Stinger,  78  Pa.  St.,  219. 


QUESTIONS    OF   LAW   AND    FACT.  685 

dispute;  no  question  about  interest  or  motive  to  be  judged 
of;  tliere  are  no  attendant  circumstances  or  exigencies  to  be 
weighed  or  considered,  affecting  the  rights  of  the  parties;  the 
whole  evidence,  M'ith  all  possible  inferences  which  can  legiti- 
mately be  based  upon  it,  cannot  exculpate  the  defendant  from 
the  negligence  imputed  to  him.  Therefore,  it  was  not  com- 
petent for  the  judge  to  make  the  deduction  upon  the  facts  that 
he  did  make.  The  point  was  one  of  law  and  not  of  tact,  and 
wrongly  decided.  This  conclusion  is  well  sustained  by  the 
authorities."* 

Wliether  the  failure  to  stop  a  train,  in  order  to  avoid  injur- 
ing an  infant  playing  on  the  track  was  negligence,  belongs  to 
the  jury  to  determine.^ 

Due  cai-e  upon  the  part  of  a  person  injured  whether  by  a 
public  or  private  conveyance  belongs  to  the  jury,'  as  to  a  horse 
railroad,'  or  as  to  attempting  to  pass  another  vehicle  in  a  man- 
ner forbidden  by  statute,  and  being  thereby  injured  by  reason 
of  a  defect  in  the  highway,*  or  as  to  an  injury  by  slipping, 
while  traveling  on  a  highway  on  foot,"  or  stepping  into  a  hole,'" 
or  as  to  injury  from  leaving  a  seat  in  a  railroad  car  before  the 
car  entirely  stops  its  motion,"  or  as  to  being  struck  by  a  mov- 
ing car  while  crossing  a  railroad  track." 

Where  the  matter  is  one  of  ordinary  care,  it  belongs  also 
to  the  jury,  and  where  there  was  room  for  discretion  in  the 
injured  person  at  the  time  of  the  accident  especially.'  And  in 
all  cases  as  to  the  degree  of  care,  as  on  the  question  of  "due 
care.'"' 

Also,  the  question  of  reasonable  management  of  an  engine 
is  for  the  jury.^  And  whether  the  failure  to  ring  a  bell  or  sound 
a  whistle  actually  caused  an  injury  is  to  be  left  to  the  jury, 

*  Kellogg  V.  Curtis,  65  Me.,  63.  "Bardsn  v.  R.  R.,  Id.,  426. 

^Walters  v.  R.  R.,  41  Iowa.  71.  " Hinckley  r.  R.R.,  120  Mass.,  257. 

'Carlandv.  Young.  119 Mass.,  150.  'Larrabee  v.  Sewell,  66  Me.,  380. 

'Hawks    V.     Northampton,     121  «Joyuer  v.  Great  Barrington,  118 

Mass.,  10.  Mass.,  463. 

^ Smiths.  Conway,  Id.,  216.  sMacomber  v.  Nichols,  34  Mich., 

9 Hunt  V.  Salem.  Id.,  294.  213. 
"Woods  V.  Boston,  Id.,  337. 


686  SUPPLEMENT. 

wLere  the  statute  makes  the  company  responsible  for  such 
injury  as  results  from  the  neglect.  Thus  the  Illinois  court 
say  thereon:  "Whether  Uie  failure  to  ring  a  bell  or  sound  a 
whistle  as  required  by  the  statute,  was  the  cause  of  the  injury 
was  a  question  for  determination  by  the  jury.  The  statute 
only  imposes  liability  for  injuries  resulting  from  that  neglect 
of  duty;  and  where  it  appears  that  the  non-compliance  with 
the  statute  did  not  result  in  injury,  no  such  cause  of  action 
would  arise,  because  of  the  non-compliance  with  the  statute.'" 

It  also  belongs  to  the  jury  to  determine  whether  at  the  time 
an  injury  was  received  by  means  of  a  public  conveyance  the 
injured  part}^  was  a  passenger,  and  so  entitled  to  the  protection 
to  be  accorded  to  a  passenger  peculiarly.' 

Also,  in  a  matter  of  private  injury,  whether  the  injured  per- 
son was  a  trespasser  when  the  accident  occurred,  as,  for  exam- 
ple, by  tailing  through  a  trap  door  in  a  shop.* 

Whether  a  sidewalk  is  really  defective,  is  a  question  of  fact.' 

Whether  a  loss  by  theft  of  deposits  in  a  bank  resulted  from 
the  negligence  of  the  bank,  is  also  a  question  of  fact." 

§  23.  A  case  arose  in  Pennsylvania  in  1877,  which  presents 
clearly  the  rule  of  injury  from  negligence  in  private  business, 
as  a  matter  of  fact,  and  the  court  therein  say:  "It  is  true 
that  where  no  duty  is  owed  no  liability  arises.  If,  therefore, 
one  leaves  a  stick  of  timber  standing  upright  against  his  wall, 
or  an  open  pit  in  his  private  yard  to  which  others  have  not 
access,  and  a  person  strays  in  without  invitation,  or  comes  in 
without  right,  and  pulls  down  the  timber  upon  himself  or  falls 
into  the  pit,  he  can  have  no  action  against  the  owner  of  the 
yard  for  the  alleged  negligence.  He  had  no  business  there, 
and  the  owner  owed  him  no  duty.  But  it  has  often  been  said 
duties  arise  out  of  circumstances;  hence,  where  the  owner  has 
reason  to  apprehend  danger,  owing  to  the  peculiar  situation  of 
his  property  and  its  openness  to  accident,  the  rule  will  vary. 

7R.  R.  V.  Benton,  69  111.,  176.  'Burt  v.  Boston,  122  Mass.,  223. 

^Buffett  V.  R.  R.,  40  N.  Y.,  16S.  » Bank  v.  Boyd,  42  Md.,  57. 

'Gilbert  ».  Nagle,  118  Mass.,  278. 


QUESTIONS  OF  LAW  AND  FACT.  687 

The  question  then  becomes  one  for  a  jury,  to  be  determined 
upon  all  its  facts  of  the  probability  of  danger,  and  the  gross- 
ness  of  the  act  of  imputed  negligence.  Such  was  the  nature 
of  this  case.  This  building  was  a  factory  in  which  several 
kinds  of  business  were  carried  on  in  different  stories,  requiring 
the  use  of  a  hoisting  apparatus  above  and  an  inclined  plane 
below  for  the  easy  carriage  of  heavy  articles,  machinery,  etc., 
into  and  out  of  the  factory.  These  appliances  were  approached 
by  means  of  a  private  opening  or  cartway  shut  in  by  a  gate 
which  their  use  required  to  be  often  opened  for  the  ingress  of 
wagons  and  hands  engaged  in  the  business.  The  gate  and 
passage  way  opened  out  upon  a  public  and  much  frequented 
street,  where  persons  were  passing  and  children  playing.  Un- 
like an  ordinary  private  alley  this  passage  was  often  opened, 
and,  therefore,  liable  to  the  incursions  of  children,  and  even 
gro\vn  persons,  from  thoughtlessness,  accident  or  curiosity. 
Now,  the  inclined  way  which  did  the  injury  was  a  dangerous 
trap;  it  was  a  heavy  platform  weighing  eight  or  nine  hundred 
pounds,  attached  by  hinges  witJiin  eighteen  or  twenty  inches 
of  the  wall,  and  when  lowered  it  fell  across  the  cartway;  when 
not  lowered  it  stood  upright  against  the  wall,  leaning  so  little 
beyond  the  center  of  gravity  that  a  jar  or  slight  pull  would 
cause  it  to  fall  forward.  Its  fall  in  this  instance  caught  four 
children  beneath  it;  one  had  his  back  broken,  another  his 
hands  mashed,  and  two  escaped  under  the  cavity.  It  was  held 
up  by  no  hook  or  other  cavity,  but  merely  rested  by  its  own 
slight  weight  beyond  the  equipoise,  ready,  therefore,  to  catch 
children  like  mice  beneath  a  deadfall.  When  wagons  passed  . 
it  was  often  held  up  by  hand,  and  a  witness  saw  it  fall  against 
the  wheels.  Now  can  it  be  righteously  said  that  the  owner 
of  such  a  dangerous  trap,  held  by  no  fastening,  so  liable  to 
drop,  so  near  a  public  thoroughfare,  so  often  open  and  exposed 
to  the  entries  of  persons  on  business,  by  accident  or  from 
curiosity,  owes  no  duty  to  those  who  will  probably  be  there? 
The  common  feeling  of  mankind,  as  well  as  the  maxim  sic 
utere  tuo  ut  alienum  non  Icedas^  must  say  this  cannot  be  true 


688  SUPPLEMENT. 

— that  this  spot  is  not  so  private  and  secluded  as  that  a  man 
may  keep  dangerous  pits  or  deadfalls  there  without  a  breach 
of  duty  to  society.  On  the  contrary,  the  mind  impelled  by 
the  instincts  of  the  heart  sees  at  once  that  in  such  a  place,  and 
under  these  circumstances,  he  had  good  reason  to  expect  that 
one  day  or  other  some  one — probably  a  thoughtless  boy  in  the 
buoyancy  of  play — would  be  led  there,  and  injury  would  follow; 
especially,  too,  when  prompted  by  knowledge  that  a  fastening 
was  needed.  PerhaJDS  tlie  best  monitor  in  such  a  case  is  the 
conscience  of  one  who  feels  in  his  dreadful  recollection  the 
crushing  sense  that  he  had  left  such  an  engine  of  ill  to  take 
the  life  of  an  innocent  child.  Such,  too,  is  the  humanity  of 
the  law  that  one  may  not  justifiably,  or  even  excusably  place  a 
dangerous  pitfall,  a  wolf  trap  or  a  spring-gun  purposely  to 
catch  and  injure  even  willful  trespassers  poaching  on  his 
grounds.  The  common  feeling  of  mankind,  guided  by  the 
second  branch  of  the  great  law  of  love  and  the  common  sense 
of  jurors,  must  be  left  in  such  a  case  to  pronounce  upon  the 
facts.  We  see  no  error,  therefore,  in  submitting  this  case  on 
its  facts  to  the  verdict  of  a  jur3^  The  verdict  when  approved 
by  the  court  must  be  permitted  to  stand,  for  we  take  it  no 
judge  who  sees  manifest  injustice  done  by  the  verdict  will 
permit  it  to  stand.  An  upright  judge  does  his  duty  quite  as 
well  when  he  strikes  down  a  false  and  unjust  verdict  as  when 
he  approves  of  that  which  he  cannot  condemn."^ 

§  24:.  It  is  held  that  on  a  question  whether  a  judgment 
sought  to  be  enforced  at  suit  of  a  discharged  bankrupt  was 
rendered  for  fraud  committed  by  the  defendant,  the  determin- 
ation of  the  matter  is  with  the  court,  and  it  is  improper  to 
leave  it  to  a  jury,  because  it  is  to  be  concluded  by  an  inspec- 
tion of  the  record.* 

§  25.  Although  the  extent  of  a  patented  invention  is  to  be 
determined  by  the  specification,  which  must  be  construed  by 
the  court,  yet  whether  a  patented  invention  is  or  is  not  an 

sHydraulic  Works  Co.  v.  Orr,  83  ^Flanagan  v.  Pearson,  42  Tex.,  1. 
Pa.  St.,  :J35,  Paxson,  J.,  dissenting. 


INSTRUCTIONS   AND    CHARGES   TO   JURIES.  680 

infringement  of  a  prior  invention  is  a  question  of  fact  for  the 
jury,'  and  so  it  belongs  to  them  to  decide  whether  the  specifi- 
cations of  two  patents,  not  expressed  in  the  same  terms, 
describe  the  same  invention,  since  in  such  case  the  identity 
does  not  appear  on  the  face  of  the  two  descriptions." 


CHAPTER  11. 
Instructions  and  Charges  to  Juries. 

§  26.  A  mere  question  of  law  is  not  to  be  referred  to  the  jury, 
as  for  example  whether  an  assignment  of  an  interest  in  a 
claim  is  of  such  a  nature  as  to  give  the  assignee  a  legal  valid 
enforceable  right  therein.'  The  legal  effect  of  a  written  instru- 
ment is  for  the  court  to  state  to  the  jury.*  And  so  a  court 
must  not  leave  to  a  jury  to  decide  wliat  is  in  evidence.^  And 
a  court  is  not  to  instruct  a  jury  what  the  presumption  of  law 
is  on  any  disputed  question  of  fact.''  Nor  submit  to  them 
the  determination  of  what  constitutes  a  legal  justification 
or  excuse.* 

§  27.  The  leading  principle  of  a  charge  or  instruction  is, 
that  it  must  be  applicable  to  the  issues  and  evidence  in  the 
case,  and  hence  not  abstract.  If  an  instruction  is  not  appli- 
cable to  the  issues  or  the  evidence,  and  is  in  itself  calculated 
to  mislead,  it  is  fatal  to  the  case  if  the  verdict  be  for  the  party 
obtaining  the  instruction."  Hence,  an  instruction  must  involve 
the  issues  raised  by  the  pleadings,^  and  must  therefore  dis- 
criminate the  issues  actually  raised,*  and  in  so  doing,  may  state 

'Jackson  V.  Allen,  120  Mass.,  76.  *  Insurance  Co.  v.  Hogan,  80  111., 

"Hawkesr.  Remington,  111  Mass.,  42. 
175;  Ballin  v.  Taggart,  17  How.,  74;  sQarvey  v.  Wayson,  42  Md.,  178. 

Bischoff  V.  Welhered,  9  Wall.,  812.  «  Aultman  v.  Lee,  43  la.,  404. 

6  Whitney  v.  Cook,  53  Miss..  552.  7  Miller  v.  Balthasser,  73  111.,  302. 

^Galloway  17.  R.  R.,  57  Ga.,  512.  ^Bemhard  v.   Insurance  Co.,    40 

3 Bank  v.  Schley,  58  Ga.,  369.  la.,  442. 

44 


690  SUPPLEMENT. 

what  has  been  admitted  and  what  contended  for."  And  it  has 
been  held  in  West  Virginia  that  the  rule  applies  to  an  issue 
directed  out  of  chancery.'  The  substance  of  the  charge  then 
must  be  conformable  to  the  declaration.''  And  a  rule  of  law 
so  general  as  not  to  be  practically  useful  at  some  point  where 
the  case  presses  has  no  need  to  be  charged  upon/  or  any  out- 
side of  the  issue  and  but  remotely  connected  with  it."  For 
example,  if  in  defense  to  an  action  on  a  promissory  note  the 
plea  relies  upon  the  statute  of  fraud  and  circumvention  which 
spoils  a  note  even  in  the  hands  of  an  innocent  holder  for  value, 
it  is  error  for  the  court  to  charge  the  jury  concerning  notice 
and  diligence  of  the  assignee.^ 

No  abstract  principle  of  law,  however  correct,  should  be 
given  in  charge,  since  there  is  always  danger  of  these  mis- 
leading the  jury  to  adapt  the  evidence  to  the  law  as  charged, 
by  a  false  gloss  and  actual  though  unintentional  perversion. 
And  hence,  the  giving  of  an  instruction  in  a  case  without  any 
applicable  evidence  to  the  prejudice  of  the  adverse  party,  is, 
of  itself,  a  sufficient  ground  of  reversal."  And  the  evidence 
should  be  fairly  sufficient  to  raise  the  question  involved  in 
the  instruction.'  For  instance,  although  the  plea  may  allege 
an  assignment  and  the  acceptance  of  such  assignment  as  pay- 
ment for  certain  notes,  and  secondary  evidence  is  given  thereon 
without  laying  a  proper  foundation  therefor,  it  is  error  to 
base  any  instruction  upon  the  fact  of  such  assignment  and 
acceptance.*  All  the  facts  must  be  embraced  and  not  a  single 
isolated  fact  drawn  out  and  presented,  because  to  take  a  fact 
out  of  its  true  relations  and  connections  tends  to  give  a  false 
view  of  it  and  of  the  case  involving  it.  As,  for  instance,  "if 
a  fact  is  to  be  found  by  a  jury,  the  existence  of  which  is  to 
be  determined  by  a  variety  of  facts  and  circumstances,  it  is 

9Weeks   v.  Cottingham,  58  Ga.,  ^TheMayor, etc.,r. Hill,58Ga.,595. 

559.  sHewett  v.  Johnson,  72  111.,  615. 

'  Henry  v.  Davis,  7  W.  Va.,  715.  «  Case  v.  R.  R.,  38  la.,  581. 

=  Jowers  V.  Baker,  57  Ga.,  81.  ^  Straus  v.  Minzesheimer,  78  HI., 

3The  Mayor,  etc.,  v.  Inman  57  Ga.,  497. 
370.  *  American  v.  Rimpat,  75  111.,  231. 


IXSTRTJCTIOXS   AND    CHARGES   TO   JURIES. 


691 


not  tlie  ri^ht  of  a  party  to  require  of  the  presiding  judge  to 
rule  that  one  or  more  of  these  facts  and  circumstances  taken 
separately  and  not  in  connection  witli  the  other  facts  and  cir- 
cumstances, is  of  itself  insufficient  to  authorize  the  finding 
of  the  main  fact.  But  the  judge  may  properly  state  to  the 
jury  the  exact  fact  or  state  of  facts  necessary  to  be  proved  in 
order  to  establish  the  claim  or  defense,  and  leave  the  jury  to 
determine  upon  all  the  competent  evidence  in  the  case  whether 
the  fact  to  be  established  is  proved.'  And  so  in  a  criminal 
case,  a  court  may  refuse  to  give  an  instruction  based  on  the 
jury's  believing  certain  evidence  apart  from  other  evidence 
when  this  evidence  included  in  the  instruction  is  equally  con- 
sistent with  the  guilt  or  innocence  of  the  defendant.  The 
whole  subject  must  be  embraced  in  the  instructions." 

"Where  a  jury  has  nothing  to  do  with  affixing  the  penalty 
in  a  criminal  case,  they  should  not  be  charged  concerning  the 
law  regulating  the  penalty .*  And  if  such  a  charge  is  given, 
it  is  held  to  be  a  fatal  error,  in  Texas.' 


'Packpr  V.  Locomotive  Works,  122 
Mass.,  490. 

'Commonwealth  v.  Carroll,  122 
Mass.,  18. 

=  Russell  V.  State,  57  Ga.,  421. 

3  Robinson  r.  State,  2  Tex.  Ct.  of 
Appeals,  390.  On  the  points  included 
in  the  section  above,  the  authorities 
are  all  agreed,  and  I  therefore  judge 
it  sufficient  to  merely  indicate  there- 
cent  cases.  As  to  conformity  to  is- 
sues or  pleadings,  ?ee  Wright  v.  Ja- 
cobs, 61  Mo.,  19,  where  it  is  held  that 
an  instruction  allowing  a  jurv  to  give 
more  than  the  amount  claimed  in 
the  pleading  is  error.  As  to  abstract 
instructions,  see  Faulk  v.  State,  51 
Ala.,  15;  Drake  v.  State,  Id.  30; 
Pugh  r.  State,  2  Tex.  Ct.  of  Appeals, 
639;  Albrecht  v.  Walker,  73  111.,  70; 
Smith  V.  People,  74  111.,  144;  Rupley 
r.  Dacrgett,  Id.,  351;  Creed  v.  Peo- 
ple, 81  m.,  566;  Casper  v.  R.  R..  44 
la.,  135.  As  to  inapplicable  instruc- 
tions not  based  on  the  evidence,  see 
Stater.  Osborne,  45  la.,  425;  State 
Savings,  etc.  v.  Hunt,  17  Kan.,  532; 


Wagner  v.  Robinson,  56  Ga.,  47; 
Northington  v.  Faber,  52  Ala.,  45; 
Davis  V.  Fairclaugh,  63  Mo.,  61; 
Weiland  v.  Weyland.  64  Mo.,  168; 
Clark  V.  R.  R.,  Id.,  440;  Mayfield  v. 
State,  44  Tex.,  59;  Ferry  v.  State, 
Id.,  473;  Norvell  r.  PhilHps,  46  Tex., 
162;  Browning  v.  State,  1  Tex.  Ct. 
of  Appeals,  96;  Priesmuth  v.  State, 
Id.,  480;  Shepherd  t'.  People,  72  lU., 
480;  Express  Co.  v.  Milk,  73  111., 
224;  Geary  tJ.  O'Neil,  Id.,  593.  As 
to  singling  out  facts  and  not  taking 
in  all  the  evidence,  see  McNamara 
V.  Dratt,  40  Id.,  413;  as  singlingout 
a  witness,  Jackson  v.  Commission- 
ers, 76  N.  C.,232;  or  particular  facts, 
Bryson  v.  Chisholm,  56  Ga.,  296. 
The  exception  to  it  is,  that  to  justify 
a  charge  on  a  given  point,  there  does 
not  need  to  be  direct  evidence  gomg 
to  the  point,  but  it  is  sufficient  if 
there  is  something  from  which  a  le- 
gitimate process  of  reasoning  can  be 
carried  on  in  regard  to  it.  Holland 
V.  Long,  57  Ga.,  41.  And,  further, 
that  a  party  has  a  right  to  request 


692  SUPPLEMENT. 

§  28.  And  injury  may  be  done  by  charging  with  a  stress 
upon  immaterial  facts  and  circumstances.  Thus,  the  Texas 
Court  of  Appeals  has  remarked  very  clearly  on  this  matter 
in  a  certain  murder  case:  "From  the  foregoing  free  and 
literal  extracts,  it  will  be  seen  that  when  the  court  comes  to 
instruct  the  jury  as  to  the  law  of  the  case  as  made  by  the  evi- 
dence, commencing  with  the  form  of  the  charge  set  out  as 
above,  importance  is  attached  to  and  stress  laid  upon  the  sub- 
ject of  the  theft  of  the  property  said  to  have  been  stolen ;  and 
the  guilt  or  innocence  of  the  party  charged  with  the  crime  of 
murder  is  made  to  depend  in  a  great  measure  upon  what  the 
jury  may  believe  the  facts  to  be  with  regard  to  the  theft  of 
the  property,  and  attending  the  deceased  in  his  search  after 
it,  and  his  efibrts  at  his  recovery  and  the  detection  and  arrest 
of  the  thief."' 

§  29.  An  instruction  must  not  assume  facts  not  in  the 
case,  since  this  is  perhaps  even  more  misleading  than  one  em- 
bracing a  mere  abstract  question  of  law.  Misguidance  is 
almost  inevitable,*  And  moreover,  it  causes  the  court  to 
usurp  the  province  of  the  jury  sometimes  as  where  the  as- 
sumed fact  is  involved  in  the  case  as  a  point  of  controversy." 
Thus,  where  the  charge  turns  upon  the  assumption  of  circum- 
stantial evidence  when  there  is  no  circumstantial  evidence  in 
the  case  it  is  fatal  error,  being  calculated  to  mislead  the  jury.' 

instructions  based  on   a  hypothesis  52  Ala.,  188;  or  single  out  fact  in 

which  the  evidence  in  his  favor  tends  criminal  prosecution  for  the  piisoner. 

to  estabhsh ;  such  charges  are  allow-  Adams  t'.  State,  Id.,  379.     And  an 

able,  because  the  opposite  party  may  instruction  must  state  all  facts  nec- 

request  charges  founded  on  the  con-  essary  to  be  proved.     R.  R.  v.  Britz, 

ti'ary  hypothesis  if  he  has  evidence  72  111.,    2j7.      Nor  must  an  undue 

to  sustain  it.    Oriel   v.  Marks,   51  prominence  be  given  to  a  particular 

Ala.,  566.     But  to  dissect  evidence  fact.     Calef  v.  Thomas,  81  III.,  479. 

on  the  same  side  and  single  outfacts,  And  the  fact  of  a  condition  attached 

is  not  tolerated.     Piper  v.  Wade,  57  to  an  offer  to  extend  a  time  of  pay- 

Ga.,  228;  Sheibley  v.  Hill,  Id.,  233.  ment  must  not  be  ignored.     Smith 

Evidence,  hoveever  weak,  if  it  tend  v.  School  District,  17  Kan.,  315. 
to  prove  a  point,  must  not  be  ex-  *  Long  v.  State,  1  Tex.  Ct.  of  Ap- 

cluded.  R.  R.  v.  Moore,  51  Ala.,  394.  peals,  718. 
And  a  charge  must  not  withdraw  s  Walters  v.  R.  R.,  41  la.,  77. 

from  the  jury  a  material  element  of  «  McDonald  v.  Beall,  55  Ga.,  289. 

the  offense  alleged.    Jordan  v.  State,  7  Regular  v.  State,  58  Ga.,  265. 


INSTRUCTIONS   AND    CHARGES   TO   JURIES.  693 

The  exception  is,  that  it*  the  facts  assumed  are  admitted  by 
the  parties,  so  as  to  go  to  the  jury  as  undisputed  points,  the 
court  tlien  has  a  right  to  assume  their  existence,*  but  it  is  not 
so  as  to  any  disputed  facts"  And  the  viciousness  of  such  an 
instruction  does  not  li^  in  its  error  as  to  the  law,  but  in  its 
tendency  to  mislead  even  if  it  states  the  law  correctly.'  Thus 
an  instruction,  in  a  case  of  trespass,  that  the  jury  might  give 
punitive  damages  if  they  should  find  for  the  plaintiff,  and  if 
they  find  furthermore  that  the  trespass  was  committed  want- 
only' or  willfully,  whereas,  there  is  no  element  of  willfulness 
or  wantonness  in  the  case,  is  fatally  vicious.^ 

The  following  illustration  is  derived  from  an  Illinois  case, 
in  which  the  syllabus  is  as  follows:  "In  an  action  against  a 
railroad  company  to  recover  for  a  personal  injury  in  being 
put  off  the  cars  of  the  defendant,  the  issue  made  by  the  par- 
ties was  whether  the  conductor  put  the  plaintiff  off  the  cars 
while  it  was  in  motion.  The  court  instructed  the  jury  as  fol- 
lows: 'The  jury  are  instructed  that  if  they  believe  from  the 
evidence  that  the  plaintiff  had  not  paid  or  offered  to  pay  his 
fare  from  Elkhart  to  South  Bend,  then  the  defendant  would 
not  be  warranted  in  throwing  the  plaintiff  from  the  train  in 
a  way  to  endanger  his  life  or  limb,  or  throw  him  off  while  the 
train  was  in  motion.'  Ileld^  that  the  instruction  assumed  as 
fact  the  very  matter  in  contest  and  was  calculated  to  preju- 
dice the  defendant," ' 

An  instruction  assuming  that  there  was  a  certain  general 
usage  or  custom,  instead  of  leaving  this  to  be  determined  by 
the  jury,  is  error.* 

§  30.  It  is  also  requisite  that  instructions  be  clear  and 
certain  and  not  doubtful  or  ambiguous.  And  especially  is 
care  requisite  where  oral  charges  are  allowed,  which,  however, 
I  think  ought  never  to  be  the  case.  But  on  this  the  Michi- 
gan court  remarks  in  condemnation  of  too  great  a  multiplic- 

8 Mathews  v.  Story,  54  Ind.,  418.  ^Waldron  v.  Marcier,  82  III.,  553. 

9Starkey  v.  Da  Graff,  22  Minu.,432.  3  R.  R.  j,.  ghelton,  66  111.,  424. 

'Van  Tayle  v.  Qaintoa,  42  la.,  459.  4  Wilson  v.  Bauman,  80  111.,  493. 


C94  SUPPLEMENT. 

it}^:  "  "We  deem  it  proper  to  sn^ijest,  as  has  l)een  done  before 
oil  several  occasions,  that  the  multiplication  of  points  and  re- 
quests in  cases  where  the  issues  are  not  complicated  is  of  in- 
jurious tendency  and  calculated  to  confuse  both  courts 
and  juries  and  imj)ede  the  administration  of  justice.  The 
jury  must  act  in  their  deliberations  on  the  understanding 
which  tliey  derive  fi'om  a  single  hearing  of  the  charges  and 
requests;  unless  made  plain  to  their  understanding  and  ex- 
pressed in  such  language  as  requires  no  interpretation  to  the 
laity,  there  is  much  danger  that  they  will  either  be  misled  or 
disregard  the  instructions  altogether,  and  decide  the  case  on 
what  they  conceive  to  be  its  general  equities."  *  And,  so,  a  re- 
quest which  is  prolix,  verbose,  and  confused,  may  be  and  ought 
to  be,  rejected,*  however  correct  its  meaning  may  be,  when  it 
has  undergone  the  requisite  interpretation;  for,  the  very  pur- 
pose of  an  instruction  is  to  give  the  jury  a  clear  and  reliable 
view  of  the  law,  so  as  to  enable  them  to  return  an  intelligent 
verdict  on  the  matter  in  controversy,'  and  so  it  should  not  be 
couched  in  ambiguous  language,  or  be  of  doubtful  meaning,' 
or  of  deficient  compass,'  for  herein  there  may  be  injurious 
sins  of  omission  as  well  as  commission.' 

§  31.  Usually,  therefore,  but  not  always,  general  instead 
of  specific  charges  are  objectionable,  as  they  are  quite  likely 
to  go  nowhere.  In  Georgia  it  has  been  held  that  a  charge  on 
the  failure  of  a  party  to  produce  evidence  available  to  him  is 
sufiicientl}'  definite  and  intelligible  when  it  announces  as  the 
presumption  of  law  that  the  evidence,  if  produced,  would  be 
prejudicial  to  the  party.  If  one  desires  a  further  statement 
of  the  respect  in  which,  and  the  extent  to  which,  this  presump- 
tion would  prejudice,  he  must  specifically  request  a  full 
explanation.  And  then  the  jury,  and  not  the  court,  must 
decide  whether  the  pending  cause  is  one  in  which  such  pre- 

5 Manufacturing  Co.  v.  Vroman,  35  sjjenry  v.  Davis,  7  W.  Va.,  715. 

Mich.,  382.  9 Gas  Co.  v.  Wheeling,  8  W.  Va., 

^Bnnkley  v.  State,  58  Ga.,  296.  368. 

7McKinney  r.  Snyder,  78  Pa.  St.,  'Mitchell  v.  State,  2  Tex.  Ct.  of 

497.  Appeals,  4U4. 


INSTEUCTIONS   A2^D    CHARGES   TO    JURIES.  695 

sumption  arises,  since  the  existence  of  the  absent  evidence 
and  the  ability  of  the  party  to  produce  it  are  essentially  mat- 
ters of  fact," 

In  Alabama,  it  is  held  that  where  the  evidence  of  a  material 
fact  is  conflicting,  it  is  error  for  the  court  to  give  a  mere  gen- 
eral charge.^  Sometimes,  however,  both  general  and  special 
charges  may  be  given,  and  they  are  to  be  considered  together/ 

In  criminal  trials  it  is  not  sufficient  for  the  judge  to  charge 
the  general  principles  defining  the  offense  charged,  but  he 
must  instruct  them  on  the  law  of  the  particular  case  that  the 
law  as  applicable  to  the  evidence,  where  it  is  the  independent 
dnty  of  the  court  to  charge  at  all  without  requests,^  includ- 
ing of  course,  an  instruction  as  to  the  nature,  elements  and 
ingredients  of  the  offense/  In  a  civil  cause  if  a  party  desires 
a  more  full  and  definite  charge  on  any  point  it  is  usually  in- 
cumbent on  him  to  make  request  to  this  end/  Where  there 
is  a  distinct  request  it  is  held  the  court  must  be  equally  ex- 
plicit, and  it  is  error  to  tell  the  jury  merely  that  they  have  a 
right  to  consider  all  the  circumstances  attending  the  examina- 
tion of  the  witnesses  on  the  trial  and  to  weigh  their  testi- 
mony accordinglj'^;*  that  is  where  the  judge  is  not  bound  to 
follow  the  exact  words  of  the  request,  as  iu  some  states,  he  is 
bound. 

§  32.  As  it  regards  the  hypothetical  instructions,  it  is  held 
that  the  hypothetical  is  in  general  the  proper  form — that  is, 
where  the  evidence  tends  to  prove  a  particular  state  of  facts 
the  party  has  a  right  to  request  an  instruction  on  the  hypoth- 
esis of  such  state  of  facts,  but  in  a  manner  to  leave  the  jury 
to  determine  whether  the  facts  are  really  proved  by  the  evi- 
dence."  But  if  irrelevant  testimony  has  been  introduced,  the 
court  is  not  allowed  to  give  instructions  based  on  hypotheti- 

"Nichol  V.  Crittenden,  55  Ga.,  498.  «  Smith  v.  State.  Id.,  517. 

3Moore  f.  Fagrgard,  51  Ala.,  525.  yWatkins  v.   Paine,   57  Ga.,   50; 

^Hemmingway  v.  Garth,  Id.,  530.  Morgan  v.  Smith,  77  N.  C.  37. 
5 Miles  V.  State,  2  Tex.  Ct.  of  Ap-  mUl  v.  Sprinkle,  76  N.  C,  353. 

peals,  511.  9 Kendall  v.  Brown,  74  111.,  232. 


696  SUPPLEMENT. 

cal  cases  supposed  to  have  been  made  by  such  evidence.*  But 
a  material  fact  may  be  stated  hypotheticallj  as  above  stated, 
leaving  the  jury  to  find  whether  it  exists  or  not.*  Tlie  hy- 
pothesis must  be  warranted  by  the  testimony.'  But  care 
must  be  taken  not  to  state  evidence  itself  hypothetically  so  as 
to  leave  it  to  them  to  decide  whether  it  is  pertinent  to  the 
issue,  and  instruct  them  that  it  is  to  be  considered  by  them  if 
the}-  judge  it  applicable  and  otherwise  disregarded.* 

§  33.  As  to  repetitions,  they  are  not  favored ;  so  that  the  re- 
fusal of  a  court  to  charge  what  has  been  already  charged  is  not 
error,  even  if  this  reason  is  not  assigned  for  refusal."  And  if 
an  instruction  is  given  at- the  instance  of  one  party,  the  court 
does  not  need  to  give  it  at  the  instance  of  the  other,*  nor  even  if 
the  phraseology  is  different,'  nor  although  it  may  contain  a 
correct  legal  proposition,'  the  purport  being  the  same  with 
that  of  another  already  given.*  And,  so,  where  it  has  been 
charged  what  the  legal  consequences  of  certain  facts  will  be,  the 
court  cannot  be  required  to  repeat  it  with  needless  or  immate- 
rial variations.'"  In  regard  to  this  matter  there  is  no  conflict 
among  the  authorities,  and  I  deem  it  needless  to  pursue  it 
further. 

§  34.  But  as  to  additional  instructions,  they  may  properly 
be  given  even  after  the  jury  have  retired;  these  may  be  re- 
called; or  they  may  voluntarily  return  for  additional  instruc- 
tions when  it  is  evidently  necessary.  And  in  Massachusetts 
it  has  been  lield  that  it  is  fully  within  the  discretion  of  the 
presiding  judge  to  recall  a  jury  and  restate  the  law  and  evi- 
dence to  them,  even  if  they  had  been  asked  if  they  desired 
any  instructions  on  the  law,  and  they  replied  they  did  not." 
Also,  in  that  state  it  has  been  held,  that  the  judge  may  ro- 

'  Evans  v.  Georga,  80  lU.,  51.  7Earll  v.  People,  73  lU.,  330. 

=  St33le  V.  R.  R.,  43  la.,  103;   Lit-  sHgicomb  v.  People,  79  lU.,  410; 

tie  V.  McSiiri,  11.,  417.  Chic^?3  o.  Bropliy,  Id.,  277. 

sHa'ohins  v.  Ma^fcarsoa,  43  Tex.,  sHoppar  v.  Moore,   42  la.,   563; 

551;  Johnson  v.  B^U.  74  N.  C,  355.  Belair  v.  R.  R.,  43  la..  674. 

♦People  V.  Iv3y,  49  Cal.,  56.  "Vason  v.  Beall,  58  Ga.,  500. 

sSpsncer  w.  Hamiston.  9  Hun.,71.  "Nichols  v.   Munsel,  116  Mass., 

«R.  R.  V.  Goddard,  72  111.,  568.  567. 


INSTKUCTIONS   AND    CHAKGES   TO   JURIES.  697 

verse  or  withdraw  an  instruction  previously  given,  without 
the  consent  of  the  parties;  and,  so  with  a  ruling  on  the  trial.' 
But  a  court,  of  course,  is  under  no  obligation  to  give  any 
additional  charge,  except  when  necessary,  and  on  a  material 
point,^  nor  to  state  what  has  already  been  given  in  more  em- 
phatic language.'  Where  a  jury  requests  a  re-charge,  the 
court  may  properly  confine  the  additional  instruction  to  the 
point  specified  by  them  in  their  request.* 

§  35.  In  some  states,  the  court  in  charging  is  strictly  con- 
fined to  the  requests  made  by  the  parties  and  cannot  even  mod- 
ify such  requests,  but  must  either  give  them  or  refuse  them 
altogether;^  in  other  states,  the  court  may  refuse  requests  and 
substitute  its  own  charge  ;*  in  others  again,  the  court  can  charge 
sua  sjponte  by  consent  of  the  parties  only.''  In  some  states 
requests  must  be  in  writing,  in  others  not.  These  distinctions, 
I  think,  need  not  be  pressed  here. 

§  36.  But  there  are  some  very  close  restrictions  at  times, 
and  some  that  seem  impracticable;  as  in  North  Carolina  the 
Supreme  Court  seems  to  regard  it  as  within  its  legitimate 
province  to  revise  the  emphasis,  looks,  tones  and  manner  of 
the  judge  in  delivering  an  oral  charge  in  a  court  below* — a 
jurisdiction  which  looks  to  me  decidedly  shadowy.  In  Georgia 
it  is  held  that  a  judge  should  not,  in  a  murder  case,  character- 
ize the  deceased  as  a  "victim  "' — which  seems  to  be  a  tangible 
restriction.  And  in  Illinois  it  is  judged  improper  to  under- 
score words  in  a  written  instruction;'"  and  very  wisely  I  would 
think. 

§  37.  Where  there  is  a  series  of  instructions,  they  should 
be  construed  together.  And  if,  under  such  construction,  the 
whole  is  correct,  even  if  a  part  taken  together  would  be  incor- 
rect, there  is  no  vitiating  error."     And  so,  if  an  instruction 

'Eldridge  v.  Hawley,  Id.,  410.  fiCusman  v.  McDonald,  28  Ark., 8. 

=  Insurance  Co.  y.  Francis,  52  Miss.,  ^Bates  v.  Ball,  72  111.,  109. 

458.  estate  v.  Butner,  76  N.  C,  118. 

3R.  R.  V.  Kunkel,  17  Kan.,  145.  ^Hayes  v.  State,  58  Ga.,  36. 

40'Shields  v.  State,  55  Ga.,  696.  xoWiight  v.  Brosseau,  73  111..  881. 

sEiland  v.   State,   52    Ala.,  322;  "Kauifman  v.  Adm'r,  9  W.  Va,, 

Carson  v.  State,  50  Ala.,  135.  633. 


698  SUPPLEMENT. 

given  on  behalf  of  one  party  is  of  doubtful  construction,  an 
instruction  on  behalf  of  the  other  may  remove  the  doubt  and 
then  there  is  no  error/  Objection  to  part  will  not  vitiate  the 
whole  where  the  whole  present  the  law  fairly  and  justice  is 
done  by  the  verdict/  And,  so,  if  there  is  an  omission  in  one 
part,  but  supplied  by  another,  the  defect  is  thus  remedied/ 

The  rule  extends  to  a  modification  of  a  request  by  the  court, 
where  such  is  allowed.  The  meaning  of  the  modification  is 
regulated  and  controlled  by  the  entire  charge,  all  construed 
together."  And  the  rule  also  extends  to  trials  for  capital 
crimes*  in  which  an  ambiguous  instruction  can  be  cured  by 
a  clear  one." 

And,  so,  if  the  entire  charge  harmonizes  as  a  whole  and  cor- 
rectly presents  the  law,  a  new  trial  will  not  be  granted  merely 
because  a  separate  instruction  does  not  contain  all  the  condi- 
tions which  may  be  gathered  from  the  entire  series."  And, 
indeed,  it  is  not  requisite  to  insert  in  each  separate  instruction 
all  the  exceptions,  limitations  and  conditions  inserted  in  the 
charsfe  taken  as  a  whole."  And  if  the  law  is  not  stated  with 
precise  accuracy  in  one  it  may  be  corrected  in  another.'  But 
if  the  clashing  between  the  two  merely  amounts  to  a  contra- 
diction the  discrepancy  is  fatal  in  all  cases.*  The  essential 
requisite  is  that  when  taken  together  they  correctly  give  the 
law  of  the  case.* 

In  Missouri  the  rule  seems  not  to  apply  to  a  trial  for  capi- 
tal crime,  at  least  in  regard  to  a  description  of  the  effense, 
wherein  it  is  held  that  the  giving  of  an  instruction  omitting 
the  elements  of  malice  and  premeditation  will  operate  a  reversal, 
even  though  another  instruction  correctly  describes  the  crime." 
In  Indiana  it  is  held  that  an  erroneous  instruction  cannot  be 
cured  by  another  which  states  the  law  correctly,  unless  the 

sLatham  v.  Roach,  72  111.,  179.  "People  v.  Doyell,  4S  Cal.,  86. 

cGilchrist  v.  Gilclirist,  76  III.,  281.  "People  v.  Welch,  174. 

7State«.  Maloy,  44  la.,  104.  'People  v.  Cleveland,  Id.,  578. 

^ Merriam  v.  Lumber  Co.,  2-3  Minn.,  ^  Insurance  Co.  v.  Earle,  33  Mich., 

314.  147. 

9State  V.  Raymond,  11  Nev.,  98.  sKrech  v.  R.  R.,  64  Mo.,  172. 

'"State  V.  Ah  Mock,  12  Nev.,  369.  tState  v.  Mitchell,  64  Mo.,  191. 


INSTKUCTIONS   AND    CHARGES   TO   JURIES.  699 

latter  plainly  withdraws  the  former/  And  so  it  is  declared  in 
Pennsylvania,  that  obscurity  may  be  cured  but  not  palpable 
error/     In  Colorado  error  cannot  be  cured.' 

§  38.  Whetlier  an  instruction  may  be  argumentative  or  not 
has  been  somewhat  variantly  decided.  In  Illinois  it  has  been 
held  that,  although  a  request  for  an  instruction  njay  contain 
some  good  law,  yet  it  is  not  error  to  refuse  it  if  it  be  volumi- 
nous and  is  rather  an  argument  of  counsel  than  anything  else.' 
In  Georgia  it  has  been  held  that  the  court  in  delivering  an 
oral  charge  should  not  assume  an  argumentative  manner,  the 
purpose  of  the  charge  being  to  state  and  explain  the  law  and 
not  to  carry  on  a  process  of  general  reasoning.^  And  hence 
the  court  cannot  be  required  to  read  to  the  jury  from  a  law- 
book.' Nor  is  the  court  to  turn  teacher  of  logic  and  instruct 
the  jury  how  to  reason  and  draw  inferences.  On  this  the 
Texas  Court  of  Appeals  tersely  remarks  that  "  the  jurors  being 
made  by  law  the  exclusive  judges  of  the  evidence  are  deemed 
to  have  capacity  enough  to  exercise  their  processes  of  thought 
and  powers  of  combination  sufficiently  to  weigh  facts  and 
determine  their  importance  and  relation  to  each  other  in  arriv- 
ing at  conclusions,  without  any  assistance  of  the  judge  in 
directing  them  how  to  ascertain  the  truth  of  disputed  facts  by 
the  relation  they  bear  to  facts  established."  *  In  Texas,  how- 
ever, the  judge  in  charging  is  allowed  to  employ  logic  but 
not  rhetoric — the  Code  prohibiting  only  such  arguments  as 
are  calculated  to  arouse  the  sympathy  or  excite  the  passions  of 
the  jury.*  Some  of  the  ancients  on  like  principle  required  all 
deliberative  assemblies  to  do  their  work  in  the  night  time  and 
without  artificial  lights,  so  they  should  steer  clear  of  oratory 
and  passion.  In  Illinois  it  is  held  that  it  is  improper  for  a 
judge  to  make  any  remark  in  the  hearing  of  the  jury  calcu- 

7R.  R.  V.  Shuckman,  50  Ind.,  42.  sHouser  v.  State,  Id.,  78. 

^Murray  iJ.  Commonwealth,  79  Pa.  ■♦Lindsay  v.  State,   1  Tex.  Ct.  of 

St.,  312;  Rice  1'.  Olin,  Id.,  391.  Appeals,   329 — but  a   very    violent 

9Mackey  v.  People,  2  Col.,  13.  presamption  in  the  case  of  some  ju- 

^Thompson  v.  Force,  65  111.,  370.  ries. 

''Hayes  v.  State,  58  Ga.,  36.  sQesine  v.  State,  Id.,  19. 


700  SUPPLEMENT. 

lated  in  anywise  to  bias  their  deliberations.'  In  Georgia  it 
has  been  declared,  however,  that  a  court  may  justifiably  excite 
the  intellects  of  a  jury  to  a  quick  perception  of  things  by 
means  of  a  brief  exhortation,  or,  at  least,  suggestion,  on  the 
importance  of  the  case,  the  trouble  it  has  given  and  the  desir- 
ableness of  disposing  of  it  by  a  final  verdict.'  In  Massachu- 
setts it  seems  in  place  for  a  judge  to  tell  the  jury,  at  least  in 
answer  to  a  question  on  it,  that  "brains"  are  not  "appli- 
ances." * 

§  39.  Where  a  defendant  on  trial  withdraws  the  general 
issue  it  is  error  for  the  court  to  charge  that  he  has  thus  admitted 
all  the  material  allegations  of  the  declaration,  without  stating 
what  those  material  allegations  are.' 

§  40.  In  a  case  where  the  evidence  is  conflicting,  the  series 
of  instructions  on  each  side  should  be  correct  in  themselves. 
Each  party  has  a  right  to  an  instruction,  or  a  series,  based 
merely  on  hypotheses,  including  his  own  evidence,  and  so  the 
fact  that  the  law  is  accurately  stated  on  one  side  will  not  cure  a 
defect  on  the  other.' 

§  41.  The  competency  and  admissibility  of  evidence  belong 
to  the  court,  but  the  credibility,  weight  and  sufficiency  belong 
exclusively  to  the  jury,  and  are  therefore  not  the  proper  sub- 
jects of  instructions.  The  Maryland  Court  has  decided  that 
where  the  matter  of  competency  is  doubtful  it  may  be  referred 
to  the  jury.*  But  herein  it  stands  entirely  alone,  I  think,  for 
it  belongs  to  the  court  to  abmit  evidence,  and,  as  preliminary  to 
this,  to  determine  the  competency  of  a  witness.  And  so  abso- 
lute is  this  that  the  court  is  under  no  obligation  to  inform  the 
jury  for  what  purpose  the  evidence  is  admitted,  necessarily, 
and  even  where  this  is  proper  to  be  done  the  omission  to  do  it 
does  not  render  erroneous  tlie  admission  of  the  evidence.* 

The  court  has  no  right  in  a  criminal  case  to  designate  a  par- 
ticular witness,  not  an  accomplice,  and  caution  the  jury  to  avoid, 

eSkelly  v.  Boland  78  111.,  433.  sMcClure  v.  Williams,  65  TU.,  390. 

7  Allen  V.  Woodson,  50  Ga.,  53.  '  R.  R.  v.  Moftit,  67  111.,  432. 

^Summersell  v.  Fish,  117  Mass.,  » Spencer  r.  Tratford,  42  Md.,  17. 

312.  3  Lipprant  v.  Lipprant,  52  Ind.,  273. 


INSTRUCTIONS    AND    CHARGES   TO   JURIES.  701 

giving  credence  to  it/  And,  in  a  civil  case,  cannot  intimate 
anything  which  would  seem  to  characterize  evidence  as  "loose 
talk."  *  In  Kansas  it  has  been  held  that  where  an  instruction 
is  requested  that  if  a  particular  witness,  naming  him,  has  will- 
fully testified  falsely,  etc.,  the  court  may  properly  modify  it  so 
as  to  state  that  if  any  witness  has,  etc.*  In  Korth  Carolina  it 
is  held  error  to  charge  as  a  rule  of  law  that  the  presumption 
is  that  men  will  testify  truly  and  not  falsely.'  But  in  Texas, 
where  one  jointly  indicted  was  permitted  to  testily,  it  was  held 
proper  for  the  court  to  instruct  the  jury  "  to  give  the  evidence 
such  credit  as  they  believed  it  entitled  to,  and  that  the  pre- 
sumption was  that  all  the  Avitnesses  testified  correctly." '  In 
Georgia  it  is  fatal  error  to  charge  the  jury  that  a  certain  wit- 
ness was  "apparently  interested,""  or  to  express  any  opinion 
as  to  what  evidence  is  most  credible,'"  or  to  charge  the  jury 
that  if  they  believe  the  evidence  for  the  state  they  must  find 
the  defendant  guilty."  It  does  not  belong  to  the  court,  in  any 
case  where  there  is  conflicting  evidence,  to  decide  upon  the 
suflSciency  of  that  on  either  side."  A  jury,  however,  may 
properly  be  cautioned  to  discriminate  the  evidence  from  all 
other  statements  before  them.'' 

As  to  the  weiglit  of  evidence,  it  has  been  held  in  Missouri 
proper  to  instruct  the  jury  that  certain  evidence  has  a  tendency 
to  prove  certain  facts,  but  not  to  estimate  the  weight  thereof 
for  them.'  Unless  the  evidence  is  of  a  character  conclusive  in 
law,  the  judge  should  abstain  from  intimating  in  any  manner 
an  opinion  as  to  its  weight.^  And  there  is  no  difference,  in 
this  regard,  between  oral  and  written  testimony.^  And  the 
court  may  properly  refuse  to  instruct  the  jury  that,  "if  the 
evidence  of  the  plaintiffs  impressed  their  minds  as  being  so 
unreasonable  as  to  remove  a  fair  presumption  of  the  truth  of 

♦RafiPerty  v.  People,  72  lU.,  38.  "Davant  v.  Carlton,  Id.,  489. 

sCutler  V.  Callison,  72  111.,  113.  "Habersham  v.  State,  56  Ga.,  61. 

^State  V.  Kellerman,  14  Kan.,  135.  "R.  R.  v.  Williams.  52  Ala.,  278. 

^SLate  V.  Jones,  77  N.  C,  520.  '^Bank  v.  Kent,  57  Ga.,  285. 

Morgan  v.  State,  44  Tex.,  511 .  '  Beattie  v.  Hill,  60  Mo.,  72. 

'Lellyetf.  Markham,  51  Ga.,  13.  "Frame  r.  Badger,  79  111.,  447. 

^Luke  V.  Calhoun  Co.,  62  Ala.,  115 


702  SUPPLEMENT. 

the  statements  made  by  tlie  plaintiffs,  they  should  find  for  the 
defendants.'"  A  charge  that  evidence  of  the  admissions  of  a 
party  is  dangerous,  and  liable  to  abuse,  has  been  held  error  as 
a  charge  upon  the  weight  of  evidence.*  And  where  the  charge 
was  that  "a  witness  who  swears  positively  that  a  certain  state 
of  facts  is  true,  is  entitled  to  more  weight  than  half  a  dozen 
others  who  cannot  swear  positively,  but  who  testify  that  they 
do  not  believe  them  to  be  true,"  the  Supreme  Court  char- 
acterized it  as  a  charge  upon  the  weight  of  evidence,  an  unnec- 
essary and  improper  interference  with  the  province  of  the  jury, 
and  a  gratuitous  aid  tendered  to  them,  which  should  never  ap- 
pear in  the  charge  of  a  court.'  And  the  Texas  Appellate  Court 
reminds  trial  courts  of  the  value  of  brevity  as  a  means  of 
avoiding  the  error  of  commenting  on  the  weight  of  evidence.^ 
And  it  has  also  held  that  an  instruction  that  confessions  vol- 
untarily made,  or  which  led  to  the  discovery  of  stolen  proper- 
ty, are  the  strongest  and  most  satisfactory  evidence,  is  erro- 
neous, being  a  charge  on  the  weight  of  evidence.*  The  judge 
must  not  only  abstain  from  expressing,  but  also  from  inti- 
mating an  opinion  on  this  matter.'  Where  the  court  re- 
fused a  request  to  charge  that  a  certain  "  auditor's  report  is 
evidence  in  behalf  of  the  defendant,  it  is  entitled  to  the  same 
weight  as  a  promissory  note  put  into  a  case  after  proof  of  its 
making  and  signature;  it  makes  out  a  prima  facie  case  for 
the  defendant,"  the  refusal  was  held  proper.'"  And,  so,  a 
court  is  not  to  single  out  a  witness  and  instruct  that,  if  the 
testimony  of  that  witness  is  believed,  the  verdict  should  be  for 
a  particular  party;'  and  ought  to  refuse  to  tell  the  jury  that, 
"  under  the  evidence  in  this  case  they  caijnot  convict  the  de- 
fendant of  murder  in  the  second  degree,"^  and  abstain  from 
informing  the  jury  that  certain  evidence  introduced  on  the 
trial  was  of  but  little  value,  and  giving  the  reasons  therefor.' 

<Palmer«.  Miners,  17  Kan.,  478.  'Merrifct  v.  State,  2  Tex.   Ct.  of 

^Castleman  v.  Sherry,  42  Tex.,  59.  Appeals,  177. 

*  Sparks  «'.  Dawson.  47  Tex.,  139.  '°Rupev.  Bumell,  121  Mass.,  450. 

'Gibbs  V.  State,  1  Tex.  Ct.  of  Ap-  '  R.  K.  v.  Judson,  34  Mich..  507. 

peals.  12.  "State  v.  Pott«r,  16  Kan.,  82. 

^Harris  v.  State,  Id.,  74.  3  Wannack  v.  Macon,  53  Ga.,  162. 


INSTRUCTIONS   AND    CHARGES   TO   JURIES.  70.3 

And,  so,  in  a  case  where  on  the  one  side  the  party  testified  and 
there  was  no  other  testimony,  and  on  the  other  side  was  the 
testimony  of  a  disinterested  witness,  the  court  held  that  it  was 
impi'oper  to  charge  that  those  witnesses  were  to  liave  the  pref- 
erence whose  means  of  information  were  the  best,  and  who 
had  the  best  opportunity  to  notice  and  remember  the  circum- 
stances, or  that  in  the  absence  of  uncorroborating  circumstan- 
ces, if  all  the  witnesses  were  in  the  same  circumstances,  and 
were  alike  in  everything  but  numbers,  the  evidence  of  two 
would  overcome  tlie  evidence  of  one,  and  the  jury  would  be 
bound  to  believe  the  two  in  preference  to  the  one.* 

On  geiiei'al  grounds,  it  is  erroneous  to  instruct  the  jury  that 
in  order  to  reconcile  a  conflict  in  the  evidence,  they  may  re- 
sort to  inference  of  a  fact  not  proved.' 

But  a  court  may  give  a  charge  concerning  the  burden  of 
proof.''  And,  also,  may  instruct  that  the  jury  are  bound 
to  believe  the  evidence,  unless  impeached  or  discredited.' 
But  it  should  not  say  that  a  certain  fact  makes  "not  a 
slight  but  a  strong  circumstance."*  Nor  can  the  judge  prop- 
erly say,  "If  you  believe  every  word  of  evidence  for  the  de- 
fense, and  disbelieve  all  the  evidence  for  the  State,  I  charge 
you  the  prisoner  is  guilty,  but  of  course  you  can  look  to  all 
the  evidence  and  make  up  your  verdict  on  it."*  And  charges 
sliould  not  be  commentaries  on  the  evidence  in  any  way,* 
either  in  whole  or  in  part.'  Nor  should  a  judge  give  his  esti- 
mate of  a  particular  witness,  as  that  he  "is  a  man  of  high  char- 
acter in  his  profession,  and  appears  to  be  a  man  of  culture."* 

The  authorities  are  almost  unanimous  on  these  points.  But 
in  Pennsylvania  a  judge  is  allowed  to  give  his  opinion  on  the 
facts,  though  in  a  way  not  to  mislead  them  or  relieve  thera  from 
any  degree  of  their  responsibility  of  judging  and  rendering  a 
verdict — a  medium  exceedingly  difficult  to  maintain,  I  should 

'Amis  V.  Cameron,  55  Ga.,  450.  *Warmuck  v.  State,  56  Ga.,  503. 

'Henderson  v.  State,  49  Ala.,  20.  sWh»:te  v.  State,  Id..  385. 

*  Hill's  Adm'r  v.  Michols,  50  Ala.,  *State  v.  Allen,  64  Mo..  67. 

336.  estate  v.  Jones,  Id.,  391. 
3  Rowland  r.  Plummer,  Id.,  183.  Crutchfield  v.  R.  R.,  76  N.  C,  320. 


704  SUPPLEMENT. 

suppose.*  And,  in  Minnesota,  a  court  may  say  that  certain 
facts  are  "strong  evidence,"  or  "evidence  of  great  weight,"' 
if  it  does  not  determine  tlie  deo;ree  of  strength  or  weiijht. 

§  42.  If,  however,  the  pUiintiff  in  a  case  furnishes  no  rele- 
vant evidence,  the  court  may  direct  a  verdict  for  the  defend- 
ant; or  if  a  party  is  omitted  who  ought  to  be  joined,  it  has 
been  held  the  matter  may  be  specially  referred  to  the  jury, 
with  directions  to  find  against  the  defendant,  if  they  believe 
from  the  evidence  that  there  has  been  such  non-joinder,*  But 
this  is  plainly  anomalous,  and  perhaps  would  not  be  held  out- 
side of  the  District  of  Columbia  now,  especially  under  the 
usual  practice  statutes  allowing  amendments  ad  libitum. 

But  where  there  is  no  evidence,  the  verdict  may  be  directed,' 
that  is,  where  all  the  facts  in  evidence  taken  as  true,  and  all 
the  legitimate  inferences  which  may  be  drawn  from  them, 
manifestly  fail  to  maintain  the  issue.* 

§  43.  Where  a  request  has  been  refused,  or  is  about  to  be 
refused,  it  should  not  be  read  in  the  hearing  of  the  jury.^ 


CHAPTER  III. 

Bills  of  Exception. 

§  44.  It  is  not  allowable  to  make  objections  for  the  first 
time  in  the  appellate  court;  they  should  be  made  below,  and 
at  the  time  of  the  ruling  on  the  trial  of  the  cause.'     And  they 

sBurke    v.    Adm'r.,    81   Pa.   St.,  ^Hofmeier  ?.'.  Campbell,  59  N.  Y., 

189.  269;  Osgood  v.  Toole,  60  N.  Y..  475; 

'McArthur  v.  Craigie,  22  Minn.,  Jones  v.  Ins.  Co.,  61  N.  Y.,  79;  Gard- 

352.  ner  v.  Hazelton.    121    Mass.,    494; 

''Snyder  v.  Finley,    1   McArthur,  Frink  r.  Alsip,  49  Cal.,  103;  and  in 

220.  equitable  matters,  Palis  v.  Tice,  28 

3  Lalonette's  Heirs  f.  Lipscomb,  52  ISI.   J.   Eq.,    432;    and  in    general, 

Ala.,  570.  Payne   v.   Flowinoy,  29  Ark.,  500; 

^Whitney  r.  Cook,  53  Miss.,  551.  Roop  v.  Delahaye,  2  Col.,  307;  Mc- 

5  Ransone  17.  Christian,  56  Ga.,  352;  Craw  i?.  Welch,  Id.,  284;  Schwartz 

Beach  v.  Branch,  57  Ga.,  362.  v.  Ins.  Co.,  21  Minn.,  215. 


BILLS   OF   EXCEPTION.  705 

must  be  specific  or  special,  and  those  whicli  are  not  specified 
at  the  time  must  be  considered  waived.  Thus,  where  an 
instrument  is  offered  in  evidence,  and  is  objected  to  on  one 
ground  which  is  overruled,  and  fails  to  object  specially  that 
the  execution  was  not  proved,  he  will  not  b^  allowed  to  urge 
this  ground  of  objection  afterward,''  And,  so,  where  specific 
objections  are  made  at  the  time  to  instructions,  others  which 
might  have  been  urged  will  be  considered  waived.'  And,  if 
evidence  be  admitted  without  objection  by  the  opposite  party, 
it  will  be  held  that  he  consented  to  it;*  and  even  in  a  crim- 
inal case.^  And  so  with  a  refusal  to  suppress  a  deposition.* 
And  so  as  to  a  verbal  charge.^  In  Rkode  Island  the  objec- 
tions must  be  urged  before  verdict.* 

The  only  questions  open,  then,  in  the  appellate  court,  are 
those  presented  in  the  bill  of  exceptions,  or  the  record  itselt? 
A  sensible  reason  is  given  for  this  by  the  Vermont  Court, 
namely:  "It  is  to  be  assumed,  where  specific  points  are  made 
and  ruled,  and  judgment  rendered  and  exception  taken,  that 
other  questions  that  might  have  been  made  but  were  not  were 
regarded  by  the  county  court  as  waived.  Non  constat  if  they 
had  been  made  tlie  judgment  would  have  been  such  as  it  was, 
and  the  cause  have  been  here  on  exceptions.  Otherwise,  causes 
may  come  here,  and  litigation  be  protracted  upon  points  and 
questions  raised  here  for  the  first  time,  and  that  did  not  (and 
that,  too,  without  any  error  in  the  court  below)  enter  into  the 
grounds  of  the  decision.  This  would  not  be  ingenuous  towards 
either  that  court  or  this,  and  would  not  be  ingenuous  and  fair 
towards  the  other  party  either  in  that  court  or  this.  It  is 
ordinarily  regarded  as  sufticient  for  the  party  to  meet  and  take 
care  of  the  points  and  questions  that  are  made  against  him  on 
the  trial  in  the  county  court,  and  that  the  county  court  has 
done  all  its  duty  to  both  parties  when  it  has  decided  the  points 

=  BotMni'.  Livingsix)n,  16Kan.,39.  7Vanwey  v.  State,  41  Tex.,  639; 

3  Price  V.  R.  R.,  42  la..  16.  Mooring  v.  State,  42  Tex.,  85. 

♦Reid  V.  Hawkins,  46  Ind.,  222.  ^state  v.  R.  R..  11  R.  I.,  361. 

sStater.  Stickley,  41  la.,  232.  sWithee  v.  Brooks,   65  Me.,   14; 

*Hutts  V.  Hutts,  51  Ind.,  581.  Sargent  v.  Machias,  Id.,  591. 
45 


706  SUPPLEMENT. 

and  questions  made  by  each  party  against  the  other.  Unless 
court  and  counsel  are  apprised  in  the  court  below  that  other 
matters,  and  what,  are  relied  on  as  ground  of  objection  and 
exception  to  the  judgment,  this  court  will  not  knowingly 
entertain  and  consider  questions  as  to  such  other  matters."  * 

The  rule  is  thus  accurately  stated  by  the  Supreme  Court  of 
the  United  States:  "Errors  of  the  Circuit  Court  restinsr  in 
parol  cannot  be  re-examined  in  this  court  by  writ  of  error. 
Instead  of  that  the  writ  of  error  addresses  itself  to  the  record, 
and  the  rule  is  that  whenever  the  error  is  apparent  on  the 
record,  whether  it  be  made  to  apj^ear  by  bill  of  exceptions  or 
by  demurrer,  the  error  is  open  to  re-examination  and  correc- 
tion. Whatever  error  of  the  court  is  apparent  in  the  record, 
whether  it  be  in  the  foundation  proceedings,  judgment  or  exe- 
cution of  the  suit,  may  be  re-examined  and  corrected,  but 
neither  the  rulin<js  of  the  court  in  admitting?  or  excludins:  evi- 
dence,  nor  the  instructions  given  by  the  court  to  the  jury  are 
a  part  of  the  record,  unless  made  so  by  a  proper  bill  of  excep- 
tions.'"' Thus,  if  a  case  is  called  and  tried  out  of  its  proper 
order,  this  is  not  a  matter  of  record,  and  the  point  must  be 
preserved  by  a  bill  of  excej)tions.'  But  where,  under  a  statute, 
the  jury  gives  in  a  general  verdict  for  plaintiff,  and  returns 
special  verdicts  on  interrogatories  proposed,  inconsistent  with 
the  general  verdict,  and  thereon  the  court  renders  judgment 
for  the  defendant,  and  the  plaintiff  brings  up  the  case  to  the 
appellate  court,  no  bill  is  necessary,  the  whole  being  a  matter 
of  record.*  The  ruling  of  a  court  to  dismiss  for  want  of  a 
sufficient  bond  must  be  preserved  by  bill,* 

An  objection  must  usually  be  formal  and  specific.  A  mere 
statement  to  a  court  reporter  that  an  exception  is  taken  will 
not  suffice  for  any  purpose."  The  Michigan  Court  say  that 
"  the  practice  of  taking  general  and  obscure  exceptions  at  the 

'  State  r.  Preston,  48  Vt.,  12;  Yates  * Dimick  v.  R.  R.,  80  111.,  338. 

V.  Pelton,  Id.,  317.  s  Hyatt  v.  Brown,  82  111..  28. 

^ Storm  V.  U.  S.,  94  U.  S.,  76.  « Coleman  v.  Gdmore  49  Cal.,  340. 
3BiUv.Miilford,  80111.,  82. 


BII,LS   OF   EXCEPTION.  707 

moment,  in  order  to  cover  the  case,  and  enable  counsel  on  sub- 
sequent critical  examination  to  raise  points  under  the  excep- 
tions which  liave  never  been  suggested  at  all  to  the  mind  of 
tlie  trial  judge,  is  objectionable  on  many  grounds,  and  is  con- 
trary to  the  theory  upon  which  points  are  allowed  to  be  raised 
by  exceptions." '  The  United  States  Supreme  Court  say  in  a 
certain  case:  "If  a  special  exception  in  proper  form  had  been 
taken  to  this  ruling,  we  might  possibly  have  been  inclined  to 
hold  under  the  stipulation  in  the  case  as  to  the  pleadings  that 
it  was  equivalent  to  a  special  finding  of  the  conveyance  to  Mrs. 
Lea,  and  a  judgment  notwithstanding  in  favor  of  the  plaintiff 
for  the  value  of  the  remaining  houses  covered  by  the  policy. 
But  there  was  no  such  exception.  The  words  are  '  exceptions 
allowed;'  that  is  all;  there  is  nothing  specific;  everything  is 
general.  If  the  exception  amounts  to  anything  it  covers  the 
whole  record.  Such  a  practice  never  has  been  and  ought  not 
to  be  sanctioned  by  this  court.  Exceptions  to  be  of  any  avail 
must  present  distinctly  and  specifically  the  ruling  objected  to. 
A  case  ought  not  to  be  left  in  such  a  condition  after  a  trial 
that  the  defeated  party  may  hunt  through  the  record  and  if  he 
finds  an  unsuspected  error  attach  it  to  a  general  exception  and 
thus  obtain  a  reversal  of  the  judgment  upon  a  point  that  may 
never  have  been  brought  to  the  attention  of  the  court  below. 
Such  a  result  might  follow  if  the  form  of  exception  here 
adopted  should  be  allowed.  We  are  not  inclined  to  depart 
from  a  rule  which  has  so  long  been  recognized  here,  and  which 
has  been  found  so  beneficial  to  litigants  as  well  as  the  courts."' 
And  the  Ohio  court  say:  "  It  seems  to  be  well  settled,  both 
upon  principle  and  authority,  that  in  excepting  to  the  charge 
of  a  judge  [or  any  ruling  either]  the  party  excepting  should  at 
the  time  point  out  definitely  the  part  of  the  charge  excepted 
to,  and  state  the  grounds  upon  which  he  excepts;  and  it  is 
equally  well  settled  that  unless  the  exception  directs  the  atten- 
tion of  the  judge  to  the  portion  or  proposition  of  the  charge 

'Turner  v.  People,  33  Mich.,  382.       ^Insurance Co.  v.  Sea,  21  Wall.,  161. 


708  SUPPLEMENT. 

excepted  to,  and  shows  specifically  and  distinctly  the  grounds  of 
the  exception,  a  reviewing  court  is  not  bound  to  take  any  notice 
of  the  exception,  nor  to  look  beyond  the  grounds  of  the  exception 
thus  stated.  In  Bain  v.  Whitehaven  (&  Furness  Junction  Rail- 
way^ 3  House  of  Lords  Cases,  16,  Lord  Brougham  held:  'It  is 
necessary  that  when  a  party  excepts  to  the  rejection  of  evidence 
or  to  the  direction  of  a  judge  given  to  the  jur}-,  whatever  is  the 
subject  matter  of  his  exception,  he  must  state  the  grounds  of  his 
exception ;  otherwise  he  cannot  except.  It  is  not  enough  for  him 
to  say  '  I  except  to  the  receiving  of  A's  evidence,'  or  '  I  except  to 
the  rejection  of  A's  evidence,'  or  '  I  except  to  the  first  passage  in 
the  direction  given  by  the  learned  judge  to  the  jury.  In  all 
these  cases  the  ground  of  the  objection  must  be  clearly  stated, 
and  beyond  tlie  ground  of  the  objection  thus  stated  the  court 
is  not  bound  to  look.'  In  Jones  v.  Osgood^  2  Seld.,  233,  it 
was  held :  '  A  general  exception  "  to  the  whole  charge  of  a 
court  and  to  each  part  of  it "  when  the  charge  contains  more 
than  a  single  proposition  of  law  and  is  not  in  all  respects 
erroneous,  presents  no  question  for  review  on  appeal.'  These 
rules,  it  is  said,  have  their  foundation  in  a  just  regard  to  ttie 
fair  administraition  of  justice,  which  requires  that  when  an 
er:«or  is  supposed  to  have  been  committed  there  should  be  an 
opportunity  to  correct  it  at  once,  before  it  has  had  any  conse- 
quences, and  does  not  permit  the  party  to  lie  by  without  stat- 
ing the  ground  of  his  objection,  and  take  the  chances  of  suc- 
cess on  the  grounds  on  which  the  judge  has  placed  the  cause, 
and  then  if  he  fails  to  succeed  avail  himself  of  an  objection 
which  if  it  had  been  stated  might  have  been  removed."  * 

In  Indiana,  it  is  required  that  each  distinct  proposition  of 
law  be  numbered,  and  tlieu  it  is  sufficient  to  mark,  under 
each  number,  a  general  exception.  But  the  court  says,  in  re- 
gard to  it,  that  "  it  was  not  the  intention  tliat  exception  should 
be  thus  taken  ero  masse  to  an  entire  series  of  instructions,  but 
that  the  exception  should  be  noted  at  the  '  close  of  each  in- 
struction.'    Hence,  the  statute  requires  them  to  be  numbered 

'Adams  v.  State,  25  Ohio  St.,  587. 


BILLS    OF    EXCEPTION.  709 

which  might  have  been  required  by  either  of  the  parties,  and 
they  should  be  so  separated  and  numbered  as  that  each  charge 
or  number  shall  contain,  as  near  as  may  be,  but  one  entire 
proposition.  Where  the  cliarges  are  thus  separated  and  num- 
bered counsel  can  at  once  determine  to  which  they  wish  to 
except,  and  should  exception  be  taken  to  each  the  court  will 
be  advised  that  all  are  excepted  to,  and  not  be  compelled  to 
grojie  in  the  dark  for  supposed  errors  lurking  somewhere  in 
the  series  of  charges  but  not  located  by  the  exceptions  upon 
any  particidar  one."  '  A  general  exception  must,  necessarily, 
be  insufficient,  where  the  charge  is  not  confined  to  a  single 
question    but  covers  several  distinct  and  separate   matters." 

The  Arkansas  court  pertinently  asks:  "By  excepting  to  an 
entire  charge  containing  ten  different  declarations  of  law,  does 
the  a])])ellaut  lay  his  finger  on  the  error  complained  of  if  any 
one  of  the  charges  is  good?"  '  Justice  to  the  court  and  to  the 
opposite  party  requires  specification.*  And  so  a  merely  gen- 
eral objection  to  a  eharge  as  a  whole  should  not  be  noticed.* 
However,  where  there  may  be  a  rule  of  court  that  written 
instructions  shall  be  passed  upon  by  the  opposite  counsel  and 
settled  then  by  the  court,  a  general  excej)tion,  it  is  held,  may 
be  allowed;*  and  especially  if  they  are  formally  discussed,  as 
I  believe  is  the  case  in  Kentucky.  If,  also,  an  entire  charge 
is  erroneous  in  its  general  scope  and  meaning,  it  may  be  ob- 
jected to  in  general  terras  in  Kansas,^  and  Wisconsin,*  If  all 
the  instructions  refused  are  proper  and  should  have  been  given 
a  general  exception  will  suffice.^ 

§  45.  A  bill  of  exceptions  must  be  filed  by  a  party  to  the 
suit,  and  one  is  not  a  party  who  has  not  been  served' with  no- 
tice or  made  an  appearance.'"  Also,  the  rule  is  that  the  bill 
must  be  filed  in  the  county  where  the  ruling  excepted  to  was 

I  Sherlock  r.  Bank.  53  Ind.,  74.  « Robinson  v.  R.  R.,  48  Cal.,  425. 

=  Lange  v.  Kaiser,  34  Mich.,  317.  7  Wheeler  v.  Joy,  15  Kan.,  389. 

sCrisman  v.  McDonald.  28  Ark.,  15.  « Butler  v.  Carnes,  37  Wis.,  61. 

'»HaiTis  V.  Harris,  53  Ga.,  682.  sQcheltree  v.  McClung,  7  W.  Va., 

5  Brown  v.  Kentfield,  50  Cal.,  131;  233. 
Irvin  V.  State,  50  Ala.,  181.  "Reedv.  Canal  Co.,  65  Me.,  55. 


710  SUPPLEMENT. 

made,  as  for  example,  if  a  cause  is  removed  to  another  county 
from  that  in  which  it  was  instituted,  and  thence  remanded,  an 
exception  cannot  be  filed  in  the  county  to  wliich  it  is  re- 
turned, as  to  the  order  remanding  the  cause,  even  if  the  same 
judge  presides  in  both  counties.' 

As  to  the  time  of  filing,  it  is  held  that,  except  by  consent 
of  parties,  the  coui*t  cannot  grant  permission  to  file  in  vaca- 
tion,^ or  even  extend  the  time  for  filing  beyond  that  prescribed 
by  statute,  except  by  agreement,'  the  court  having,  in  such 
case,  no  power  to  prescribe  the  time.*  But,  if  there  is  no 
statutory  regulation  the  time  may  be  fixed  by  rule  of  court/ 
and  then  the  time  is  imperative.  But  time  may,  in  any 
event,  be  extended  by  consent."  Sometimes  under  a  statute 
the  judge  has  a  discretionary  power  to  allow  a  filing  nunc  pro 
tunc,  as  in  New  York.''  Filing  may  precede  signing  in  Cali- 
fornia;* but  if  a  bill  is  presented  for  settlement  after  the 
expiration  of  thirty  days  from  the  date  of  the  judgment,  and 
the  opposite  party  objects  that  it  is  too  late,  the  court  must 
incorporate  therein  a  clause  showing  an  extension  of  time  as 
an  excuse  for  the  delay,  or  else  the  bill  cannot  be  considered 
by  the  appellate  court,  even  if  settled.' 

Usually  a  bill  must  be  signed,  and  a  judge  cannot  arbitra- 
rily refuse  to  sign  it,  if  it  correctly  sets  out  the  facts."  With- 
out such  signature,  usually  the  appellate  court  will  not  act  on 
it."  A  mandamus  will  lie  to  compel  the  judge  to  sign  a  true 
bill,'''  because  signing  and  sealing  is  a  mere  ministerial  act  in 
such  a  case.  But  a  mere  qualified  and  temporary  refusal  will 
not  justify  a  mandamus;  the  refusal  must  be  absolute,  and  if 
his  reason  is  that  the  bill  is  not  a  true  one,  no  writ  of  man- 
damus will  issue,  since  he  has  a  right  to  determine  the  truth 

'McMahan  V,   Spinning,  51  Ind.,  ^  Marble  r.  Fay,  49  Cal.,  585. 

192  9 Higgins  v.  Malioney,  50  Cal.,  444. 

=>  Mentzurg  v.  R.  R.,  64  Mo.,  25.  '°Bell  v.  State,  2  Tex.  Ct.  of  App., 

3Lynch  v.  Kennedy.  42  la.,  220.  215. 

♦Harpert'.  Harper,  10  Bush.,  447.  "  Commonwealth  v.  Hall,  8  W.Va., 

5 Dale  V.  Patterson.  6:3  Mo.,  98.  259. 

6  Walker  v.  Moors,  122  Mass.,  501.  "Jackson  v.  Clark,  52  Ga.,  53. 
7 Douglas  V.  Douglas,  7  Hun.,  275. 


BILLS   OF    EXCEPTION.  711 

of  the  bill  for  himself,  and  cannot  be  compelled  to  affix  his 
signature  to  a  false  statement,'  Also,  the  farce  of  sealing  with 
a  scrawl  seal  is  nsually  held  as  necessary  as  signing.'  As  to 
the  time  of  signing  and  sealing,  it  may  by  agreement  be  in 
vacation,'  but  without  agreement,  perhaps  the  rule  is  that  it 
should  be  signed  at  the  term  wherein  the  judgment  was  ren- 
dered, but  it  is  not  necessary  it  should  be  done  during  the 
trial.  This  would  be  impracticable.  The  noting  of  the  ex- 
ception is  all  that  is  requisite  at  the  moment. 

"Where  nothing  appears  to  the  contrary,  it  will  be  presumed 
that  the  bill  was  duly  signed,  although  it  was  not  filed  until 
after  the  expiration  of  the  term  of  office  of  the  judge  who  tried 
the  cause.*  The  filing  does  not  govern  the  presumption  as 
to  siornintj.' 

A  judge  cannot  sign  by  deputy.  It  must  be  signed  by  a 
judge  who  presided  at  the  trial  or  by  his  successor  in  office.'" 

The  signature  imports  absolute  verity,  so  far  as  the  state- 
ments go,  although  it  may  be  inquired  whether  it  is  defective 
in  not  containing  all  it  should  contain." 

In  Indiana,  however,  when  instructions  are  refused,  and  then 
signed  by  the  party  or  his  attorney,  and  noted  as  refused  and 
excepted  to  the  note,  also  signed  by  the  party  or  his  attorney, 
the  instructions  become  a  part  of  the  record  without  the  signa- 
ture of  the  judge."  But  this  seems  to  be  exceptional.  And 
in  Missouri,  if  the  judge  fails  to  sign  a  bill  in  a  criminal  case 
where  error  is  apparent  on  the  face  of  the  record  the  cause 
will  be  remanded,'  or  perhaps  anywhere. 

In  all  cases  if  the  signature  is  affixed  in  due  time,  the  filing 
may  be  subsequent.'  In  Oregon,  the  presenting,  allowing  and 
signing  may  be  at  any  time  prior  to  the  first  day  of  the  next 
term  of  court.'  The  United  States  Supreme  Court  very  sen- 
sibly dispenses  with  the  unmeaning  scrawl  seal.* 

s  Jelley  v.  Roberts,  50  Ind..  3.  "  Brown  v.  Johnson,  U  Kan.,  377. 

6Rhinehart  v.  State,  45  Md.,  454.  '^Etter  v.  Armstrong,  46  Ind.,  197. 

7R.  R.  V.  Ragsdale,  51  Miss.,  447.  '  State  v.  Barnett,  63  Mo.,  300. 

^Bowen  v.  Preston,  48  Ind.,  367.  «Eldred  v.  Malloy,  2  Col.,  20. 

^Goodrichv.  Cook,  81  111.,  41.  sHalcomb  v.  Teal,  4  Oreg.,  352. 

"R.  R.  V.  Rogers,  48  Ind.,  427.  ■♦Stanton  v.  Embrey,  93  U.  S.,  555. 


712  SUPPLEMENT. 

§  46.  Another  rule  is,  that  injurious  error  must  be  shown. 
And  so,  if  the  exchision  of  evidence  be  complained  of,  the 
bill  must  show  that  the  evidence  was  material  to  the  issue.' 
It  must,  in  any  case,  appear  affirmatively  that  the  party  tiling 
the  bill  has  been  aggrieved.^  No  exception  will  lie  to  the 
ruling  of  a  judge  merely  because  it  is  erroneous.^  And  so, 
if  a  ruling  on  a  point  of  law  is  erroneous,  and  at  the  time  ap- 
parently material,  yet,  if  afterward,  the  finding  of  the  jury  is 
such  as  to  render  it  immaterial,  it  will  not  be  reviewed.* 
And  exceptions  must  be  so  fully  stated  as  to  enable  the  appel- 
late court  to  judge  of  the  rulings  complained  of  or  the  excep- 
tions will  be  dismissed."  And  if  a  refusal  to  the  rule  be 
excepted  to,  it  must  be  shown  that  evidence  was  offered  call- 
ing for  such  a  ruling.* 

Where  a  court  sustains  an  objection  to  a  question  asked  a 
witness  on  the  trial,  it  must  not  only  be  shown  on  exception 
what  was  the  ground  of  the  objection,  but  what  evidence  it 
was  intended  to  elicit."  And  if  a  ruling  overrules  such  ob- 
jection, the  bill  must  show  that  a  ground  of  objection  was 
set  out  to  the  court  below,  what  that  ground  was,  and  what 
was  the  answer  of  the  witness.*  It  must  have  been  stated  in 
the  court  below  what  fact  the  questioner  expected  to  establish 
by  the  answer.'  And  even  if  there  are  material  errors,  yet 
if  the  excepting  party  cannot  prevail  on  account  of  his  own 
errors,  the  exceptions  cannot  be  sustained.'" 

§  47.  The  principle  of  estoppel  in  a  modified  form  applies 
to  the  matter  of  exceptions,  as  for  example,  one  is  not  allowed 
to  object  to  an  instruction  given  in  behalf  of  the  opposite 
party  which  is  similar  to  one  given  for  himself."  And,  so,  if 
one  calls  on  the  court  to  decide  a  case  as  a  question  of  law 

'SafFord  V.  Grout,  120  Mass.,  20.  7R.  R.  v.  Rowland,  51  Ind.,  285. 

*Reed  v.  Canal  Coi-p.,  65  Me.,  53.  ^ jj^iesapple  v.  Fawbush,  Id.,  494. 

3State  V.  Pike,  Id.,  HI.  »  R.  R.  v.  Lansing.  52  Ind.,  229. 

■•Webber  v.  Read,  Id.,  564.  «>Famsworth  Co.  v.  Rand, 65  Me., 

5  Daniels  v.  Woonsocket,  11 R.  I..  4.  20. 

'Buxton  V.  Potter's  Works,    121  "Smith  v.  R.  R.,  38  la.,  173. 
Mass.,  446. 


BILLS    OF   EXCEPTION.  713 

witliout  requesting  the  submission  of  any  question  of  fact  to 
the  jury,  he  cannot  except  to  the  finding  it  seems.* 

§  48.  And  so  a  party  may  waive  the  right  to  except,  some- 
times tacitly,  as  in  Khode  Island,  by  neglecting  to  object 
until  after  the  verdict  of  the  jury  has  been  returned.*  And 
one  consenting  to  a  proceeding  when  he  might  have  prevented 
it  on  account  of  irregularity,  will  be  considered  to  have  waived 
the  irregularity.  So  in  New  York,  if  exceptions  are  taken 
in  the  course  of  a  trial,  and  afterward  the  parties  consent  to 
the  directing  of  a  verdict  subject  to  the  opinion  of  the  court 
at  the  general  term,  this  consent  will  be  held  to  have  waived 
the  exceptions  taken. '' 

§  49.  I  find  nothing  which  materially  varies  the  statements 
in  the  body  of  this  work  as  to  what  a  bill  of  exceptions  should 
contain,  and  I,  therefore,  pass  by  the  greater  part  of  the  late 
decisions  on  this  point,  they  being  merely  confirmatory;  and 
make  the  statements  below  as  comprising  all  the  additional 
matter  requisite  to  be  given.  The  Mississippi  court  thus 
states  the  object  of  the  bill:  "The  object  of  a  b-ill  of  excep- 
tions is  to  perpetuate  for  the  use  of  the  appellate  court  a  full 
and  complete  history  of  what  transpired  on  the  trial  or  so 
much  as  may  be  needed  for  the  purpose  of  revising  the  pro- 
ceedings. It  is  the  creation  originally  of  the  statute  of 
Westminster  the  2nd.  The  sole  purpose  is  to  certify  to  the 
court  of  review  matters  during  the  progress  of  the  cause 
which  are  not  noted  in  the  record  proper,  and  which  in  this 
mode  becomes  part  of  it.  It  is  purely  narrative  and  histori- 
cal, except  in  the  sense  that  it  is  the  duty  of  the  judge  to  sign 
and  seal  it."  *  And  a  bill  accordingly  must  contain  all  facts 
and  circumstances  pertinent  and  necessary  to  form  such  intel- 
ligible history.**  And  a  mere  recital  in  the  judgment  ren- 
dered will  not  supply  the  place  of  such  a  bill,*  although  iu 

'McCall  V.  Ins.  Co.,  66  N.  Y.  506.  4R.  R.  v.  Ragsdale,  51  Miss.,  451. 

''Meyers  «.  Briggs.  11  R.  1.,  180;  s Griffin  w.  Chadwick,  44 Tex.,  406. 

Patton  V.  Mfg.  Co.,  Id.,  188.  ^Smitht).  State,  1  Tex.  Ct.  of  App., 

3 Byrnes  v.  Cahoes,  67  N.  Y.,  204.  133;  CaJdweU  v.  State,  2  Id.,  53. 


714  SUPPLEMENT. 

order  to  make  a  bill  part  of  the  record,  the  record  must  show 
its  allowance  and  proper  execution.' 

Thus,  a  court  will  not  review  a  refusal  to  grant  a  continu- 
ance unless  the  whole  matter  is  brought  in  by  bill."  And,  so, 
if  an  indictment  was  not  presented  in  open  court  by  the  grand 
jury,  or  if  its  presentment  or  the  style  of  the  cause  was  not 
entered  on  the  minutes,  this  must  be  brought  in  by  bill.*  So 
as  to  admission  or  exclusion  of  evidence.'"  And  so  a  state- 
ment of  facts  may  be  required  to  be  brought  in  by  bill."  And 
the  rule  is  the  same  in  a  misdemeanor  cause.'*  And  a  motion 
for  change  of  venue  can  only  be  made  part  of  the  record  in 
the  same  way.'^     And  a  charge  of  the  court  sua  mota}^ 

Ks>  to  documents,  they  must  be  inserted  in  the  bill  before 
sifirnins:,  or  else  so  closely  identified  as  to  leave  no  room  for 
mistake  by  the  transcribing  officer,  and  also  written  instruc- 
tions, etc.'^  And  the  bill  must  omit  no  material  part  of  eitber 
charge  or  evidence.'  However,  documentary  evidence  may,  I 
suppose,  usually  be  attached  instead  of  inserted  in  the  body 
of  the  bill.*  The  important  miatter  is  to  have  it  clearly  iden- 
tified; and,  in  Arkansas  this  is  allowed  in  regard  to  instruc- 
tions.^ In  California  a  deed  copied  in  the  record  ma}'  be 
referred  to  and  identified  by  the  bill.*  But  where  a  lease, 
which  is  the  basis  of  a  suit,  is  copied  into  the  record  by  the 
clerk,  and  the  bill  of  exceptions  fails  to  show  that  the  lease 
was  offered  in  evidence,  it  cannot  be  considered.* 

In  Obio,  where  testimony  is  made  a  part  of  the  record  by 
an  agreed  statement  of  facts,  it  is  held  there  is  no  need  of  re- 
embodying  the  same  in  a  bill  of  exceptions.*  And  the  rule 
ought  to  be  applied  to  all  documentary  evidence  placed  on  file 

7  Burk  V.  R.  R.,  26  Ohio  St..  643.  's Tuscaloosa  Co.  v.  Logan,  50  Ala., 

8  Books   V.  State.  2  Tex.   Ct.  of      503. 

App.,  1.  'Crow  V.  Stowe,  113  Mass.,  153. 

9  Alderson  v.  State,  Id.,  10.  =  Woolfolk  v.  Wright.  28  Ark.,  1. 
"Brown  v.  State.  Id.,  115.  aStirman  r.  Cranens.  29  Ark..  548. 
"Ferrelly.  State,  Id.,  393;  Mitchell  ^Canfield  v.  Thompson,  49  Cal.. 

V.  State,  Id.,  404.  210. 

"Goode  V.  State,  Id.,  520.  s Gilchrist  v.  Gilchrist,  76  lU.,  281. 

'^Hobbsr.  State.  44  Tex.,  353.  ^McGonnigle  v.  Arthur,  27  Ohio 

'*State  V.  Ah  Mook,  12  Nev.,  369.  St.,  257. 


BILLS   OF   EXCEPTION.  715 

in  a  cause.  As  the  Ohio  Court  said  in  the  ease  last  cited  very 
significantly:  "There  appears  to  us  no  sound  reason  why  a 
vain  thing  should  be  required."  In  Arkansas,  if  a  case  is 
tried  exclusively  on  a  statement  of  facts  no  bill  is  necessary, 
but  otherwise,  if  there  was  additional  testimony  in  the  case.* 
Where  a  court  strikes  pleas  from  the  files,  a  bill  is  held  nec- 
essary to  preseve  the  evidence  on  which  the  court  acted,  and 
without  it  the  court  will  not  review  the  ruling."  No  material 
evidence  in  regard  to  any  ruling  must  be  omitted  or  the  pre- 
sumption of  correctness  must  overrule  all  objections.'  And 
so  a  bill  must  contain  excluded  evidence  where  the  exclusion 
is  the  ground  of  complaint,  and  in  any  case,  where  the  bill 
does  not  include  all  the  evidence  introduced  on  the  trial  the 
presumption  is  that  other  sufficient  evidence  was  introduced.^ 
And  a  bill  should  set  out  in  narrative  form  the  evidence  rela- 
ting to  the  point  presented  or  else  by  a  statement  of  its  sub- 
stance or  what  it  tended  to  prove,  and  the  questions  to  a 
witness  should  be  given  only  where  it  is  necessary  to  present 
an  objection  thereto,'  or  to  enable  the  answer  to  bo  under- 
stood. And  where  a  bill  sets  out  an  affidavit  supporting  an 
overruled  motion,  it  must  negative  the  supposition  that  there 
was  any  other  affidavit  or  evidence  used  or  else  the  court  will 
not  review  the  overruling  decision.^ 

A  motion  for  a  new  trial,  and  in  fact  all  motions,  must  be 
brought  into  the  record  by  a  bill  of  exceptions.' 

Where  a  bill  sets  out  instructions  refused,  and  shows  the 
fact  that  others  were  given,  the  court  cannot  say  there  was 
error  in  not  giving  those  preserved,  because  those  which  are 
not  set  out  may  have  comprised  the  substance  of  those  refused, 
and  hence,  the  court  below  would  not  be  bound  to  repeat. 
But  if  the  bill  sets  out  refused  instructions  and  refers  to  no 
others,  the  court  will  not  presume  there  were  others.'' 

*  Boyd  r.  Carroll,  30  Ark.,  527.  9  Mcintosh  v.   Commissioners,   13 

spanning  v.  RusseU.  81  111.,  398.  Kan.,  171. 

«Glidden  v.  Child,  122  Mass.,  433.  'Nisbett  v.  Brown,  30  Ark.,  585. 

7 Stack  V.  People,  80  111.,  33.  "Ives  v.  Vanscoyoc,  81  111.,  120. 
^People  v.  Gttty,  49  Cal.,  581. 


716  SUPPLiiMENT. 

§  50.  It  is  lield  that  affidavits  impngning  tlie  correctness 
of  a  bill  duly  signed,  will  not  be  considered  unless  presented 
to  sustain  another  bill  purporting  to  contain  a  correct  state- 
ment of  the  evidence  and  signed  by  two  bystanders.'  But  a 
bill  docs  not  import  absolute  verity  where  it  is  manifest  that, 
although  it  professes  to  set  out  all  the  evidence,  the  statement 
on  the  face  is  not  correct.*  But  usually  on  notice  and  leave  a 
bill  may  be  amended  where  there  is  an  evident  mistake  in 
recording  the  testimony  therein.* 

§  51.  The  stipulation  of  parties  cannot  give  a  judge  power 
to  settle  a  bill  of  exceptions  after  the  expiration  of  his  ferm 
of  office;  but,  sometimes,  a  court  will  give  a  new  trial  where 
the  term  expires  before  a  bill  can  be  settled,  the  parties  not 
being  in  default  in  the  matter.* 

§  52.  Exceptions  which  are  not  true  or  which  are  filed 
after  the  time  allowed,  may  properly  be  disallowed.^  But  on 
petition,  the  party  may  be  allowed  to  prove  the  truth  of  a  bill 
which  the  judge  refused  to  sign.  And,  on  leave  being  given, 
he  may  prove  some  and  waive  others,  provided  the  exceptions 
are  wholly  distinct  and  independent.* 

§  53.  No  matter  of  judicial  discretion  is  exceptionable.' 
And  the  mere  forms  of  expression  or  immaterial  remarks  by 
the  court  cannot  be  objected  to  seriously.' 

§  54.  As  to  exceptions  to  evidence,  there  is  no  distinction 
in  New  York  between  legal  and  equitable  actions." 

sWoodworth  v.  Byerly,  43  la.,  106.         ^Sawyer  v.  Iron  Works,  116 Mass., 
*MoiTOw  V.  Stale,  48  Ind.,  432.  424. 

sBeckwith  t^.  Talbot,  2  Col.,  604.         9 Snow  v.  R.  R.,  65  Me..  530. 
^Crittenden  v.  Schermerhom,  35         'Ginna«>.  R.  R.,  67  N.  Y.,  596. 
Mich.,  370.  "Norton  v.  Malloiy,  63  N.  Y..  435. 

7Ar\dlla  v.  Spaulding,  121  Mass.,  505. 


TABLE   OF  CASES. 


[Note. — The  cases  are  indexed  in  the  name  of  the  plaintiff.     The  fignres 
refer  to  the  pages.] 


I^^HT     I. 


^. 


Abbott  V.  Abbott,  141. 
Acker  v.  Ledyard,  126. 
Adam  v.  Abernethy,  112. 
Adams  v.  Davis,  109. 
Adcock  V.  Marsh,  257. 
AdmT  V.  Hardeman,  136. 
Adm'r  v.  Earl,  152. 
Adm'r  v.  Hock,  176. 
Albin  V.  Lord,  166. 
Allen  V.  Blunt,  12.2. 
Allen  V.  Lyles,  67. 
Allen  V.  Sundius,  67. 
Allen  V.  Insurance  Co.  199. 
Allen  V.  Cowan,  246. 
Allman  v.  Gaun,  68. 
American  Life  Ins.  Co.  v.  Exec- 
utors, 103. 
Anderson  v.  Bock,  155. 
Andrews  ??.  Graves,  57. 
Archibald  v.  Davis,  145,  276. 
Amis  V.  Steamboat,  74. 
Arnold  v.  Norton,  114. 
Arrowsmith  v.  Durell,  162. 
Appleby  v.  Insurance  Co.  205, 
Atkinson  v.  Gatcher,  171. 
Ault  V.  Fleming,  127. 
Avery  v.  Clemens,  118. 


Ayrault  v.  Bank,  234. 
Ayrault  V.  Chamberlain,  195. 


B. 

Babcock  v.  Eckler,  247. 
Bagg  V.  Jerome,  240. 
Baker  v.  Brintnall,  269. 
Baker  v.  Klepper,  151. 
Bank  v.  Neal,  117. 
Bank  v.  Administrator,  129. 
Bank  v.  Harmer,  129. 
Bank  v.  Jones,  130. 
Bank  v.  Ezell,  139. 
Bank  v.  Baldenwick,  139. 
Bank  v.  Inloes,  154. 
Bank  v.  Stone  Dressing  Co.  181. 
Bank  v.  Express  Co.  181. 
Bank  v.  Kennedy,  182. 
Bank  of  Commerce,  183. 
Bank  v.  Smiser,  187. 
Bank  v.  Betts,  193. 
Barbour  v.  Fullertun,  135. 
Barreda  v.  Silsbee,  83. 
Barry  v.  Hoffman,  152. 
Barry  v.  Bermenthall,  68. 
Barnes  v.  Brown,  187. 
Barnes  v.  Rogers,  267. 
717 


718 


TABLE   OP   CASES. 


[Part  L 


Bartlett  v.  Hoyt,  107. 
Bartlett  v.  Tarbell,  189. 
Bassett  &  Co.  215. 
Bateman  v.  Ruth,  222. 
Batten  v.  Taggart,  158. 
Batre  v.  State,  39. 
Baynard  v.  Eddings,  145. 
Beatty  v.  Gilmore,  233. 
Beatty  v.  Insurance  Co.  204. 
Beaslc}'  v.  Evans,  88. 
Beatson  v.  Skcene,  78. 
Beard  v.  Chitwood, 
Becker  v.  Ilecker, 
Beedy  v.  Macomber,  250. 
Belden  v.  Gray,  193. 
Bell  V.  Bank,  234. 
Bell  V.  R.  R.  214. 
Bell  V.  Woodward,  150. 
Belt  V.  Goode,  79. 
Bemis  v.  Phelps,  95. 
Bennett  v.  Everett,  89. 
Benedict  v.  Martin,  128. 
Bensley  v.  Atwill,  152, 
Benson  v.  Adam,  155. 
Bennell  v.  Chamberlain,  184, 
Bentley  v.  Rickabaugh, 
Berkshire  Woollen  Co,  v.  Proc- 
tor, 118. 
Berry  v.  Billings,  71. 
Bernhardt  v.  R.  R.  230. 
Berwick  v.  Horesfall,  55, 
Besson  v.  Southard,  256, 
Betts  V.  Francis,  107. 
Betzer  v.  Killinger,  21. 
Bevan  v.  Byrd,  171. 
Beverly  v.  Burke,  168. 
Billings  V.  Billings,  239. 
Bilbrough  v.  Insurance  Co.  201. 
Binion  v.  Miller,  274. 
Birch  V.  Benton,  76,  284. 
Birney  v.  Telegraph  Co.  282. 
Birdsall  v.  Russell,  118. 
Birkett  v.  R.  R.  231. 


Bishop  V.  Williams, 
Blanding  v.  Sargeant,  147. 
Blake  v.  Davis,  151. 
Blanchard  v.  Pratt,  155,  161. 
Black  V.  Nease,  1G6. 
Blackwell  v.  Fosters,  136. 
Blanc  V.  Klumpke,  213. 
Blunt  V.  Patten,  123. 
Boggs  V.  Martin,  112, 
Boardman  v.  Ins.  Co,  201, 
Bond  V.  Clark,  89. 
Bourse  v.  Brahe,  168, 
Bourke  v.  James,  68, 
Bovill  V.  Pimm,  158. 
Bowman  v.  Executor,  279. 
Bradford  v.  Erwin,  267. 
Bradford  v.  R.  R.  87. 
Bradley  v.  Morris,  259, 
Bradley  v.  Williams,  74, 
Brakebill  v.  Leonard,  132. 
Breen  v.  People,  54. 
Bridgers  v.  Bridgers,  21, 
Brig,  &c.  V.  Matthews,  87. 
Brock  V.  King,  20. 
Brock  way  v.  Kinney,  21. 
Brooks  V.  Elgin,  116,  234. 
Brotherline  v.  Swirls,  240. 
Brotherson  v.  Jones,  191. 
Broward  v.  Daggett,  82. 
Brown  v.  Bowen,  285. 
Brown  v.  Peterson,  263, 
Brown  v.  Brooks,  234. 
Brown  v.  Clayton,  234, 
Brown  v.  Huger,  159, 
Brown  v.  Willey,  143. 
Brown  v.  R.  R.  118. 
Brown  v.  Orsa,  14. 
Brown  v.  Jones,  11, 
Browner  v.  Hill,  205. 
Brownfield  v.  Brownficld,  143, 
Brubaker  v.  Okeson,  70. 
Bryan  v.  FaWcett,  142. 
Bryan's  Lessee  v.  Harvey,  160. 


Pabt  I.] 


TABLE   OF   CASES. 


719 


Bryant  V.  Biddeford,  T5. 
Buckley  v.  Archer,  99. 
Buckley  v.  Garrett,  210. 
Bulkeley  v.  Smith,  260. 
Bulkeley  v.  R.  R.  226. 
Builock  IK  Narrott,  149. 
Bumstead  v.  Ins.  Co.  210. 
Burnham  v.  Aycr,  127. 
Burbank  v.  Piermont,  268. 
Burko  V.  R.  R.  130. 
Burr  V.  Williams,  74. 
Burr  V.  Todd,  249. 
Burroughs  v.  Langley,  87. 
Burrows  v.  Stebbins,  240. 
Burton  v.  R   R.  231. 
Burton  v.  Merrick,  183. 
Buswell  V.  Roby,  88. 
Bush  V.  Fox,  122. 
Butcher  v.  R.  R.  179. 
Byrne  v.  Byrne,  75. 


c. 

Cabot  V.  Winsor,  175. 
Cahoon  v.  Marshall,  177. 
Caldwell  V.  Dickson,  55. 
Campbell  v.  State,  281. 
Campbell  v.  Ins.  Co.  202. 
Campbell  v.  Rusch,  18. 
Carbrey  v.  Willis,  170. 
Carl  V.  Knott,  92. 
Carleton  iK  Townsend,  120. 
Carlton  v.  Baldwin,  252. 
Carnes  v.  Piatt,  94. 
Carpenter  v.  Smith,  283. 
Carpenter  v.  Roe,  258. 
Carpenter  v.  People,  75. 
Carpenticr  i'.  Thiston,  55. 
Carriage  Co.  v.  Kinsella,  135. 
Cassiday  v.  Conway,  147. 
Catlin  V.  Guiiter,  193. 
Cathran  i'.  State,  54. 


Center  v.  Spring,  258. 

Chapin  V.  Patten,  82. 

Chamberlain  v.  Enfield,  140. 

Chandler  v.  Von  Roeder,  162. 

Chapman  v.  Coffin,  110. 

Charlotte  v.  Choteaux,  34,  64. 

Chase  v.  Ralston,  244. 

Chesapeake  Bank  v.  Swain,  64, 
67. 

Cheatham   v.  Riddle,  280. 

Choteaux  v.  Leach,  93. 

City  of  St.  Paul  v.  Keeley,  221. 

Clack  V.  Ins.  Co.  199. 

Clark  V.  Rankin,  235. 

Clark  V.  Groom,  252. 

Clarke  v.  Marriatt,  64. 

Clarke  v.  Robinson,  25. 

Clarke's  Adm'r,  171. 

Clifford  V.  Insurance  Co.  202. 

Cliquet's  Champagne,  128. 

Cloon  V.  Gerry,  256. 

Glowers  v.  Sawyers,  146. 

Coats  V.  Adm'r,  279. 

Cobb  V.  Wallace,  81. 

Cobleigh  v.  Pierce,  112. 

Cockran  v.  Taber,  140. 

Cole  V.  Hills,  127, 

Colgan  V.  Aymar,  130. 

Collins  Manuf.  Co.v.  Marcy,113. 

Collier  v.  State,  282. 

Colman  v.  Clements,  66. 

Commercial  Bank  v.  Jones,  102. 

Commonw.  v.  Rock,  38. 

Commonw.  v.  Authes,  39. 

Commonw.  v.  Lawrence,  39. 

Commonw.  v.  Van  Tuyl,  45. 

Commonw.  v.  Cook,  63. 

Commonw.  v.  Brown,  69. 

Commonw.  v.  Riggs,  70. 

Commonw.  v.  Donovan,  121. 

Commonw.  v.  Davis,  127. 

Commonw.  v.  Inhab.  of  Deer- 
field,  127. 


720 


TABLE   OP   CASES. 


[Part  I. 


Commonw.  v.  Barney,  148. 
Commonw.  v.  R.  R.  227. 
Commonw.  v.  Randall,  266. 
Commonw.  v.  Larrabee,  280. 
Commonw.  v.  Casey,  282. 
Commonw.  v.  Robey,  19, 
Comstock  V.  Savage,  186. 
Condrey  v.  Henley,  35. 
Congar  v.  Chamberlain,  89. 
Conklin  v.  Thompson,  272. 
Connehan  v.  Ford,  157. 
Converse,    Adm'r,    v.   Burgess, 

271. 
Cook  V.  Bennett,  284. 
Cook  V.  McChristian,  273. 
Cook  V.  Martin,  88. 
Cook  V.  Carroll,  55. 
Cooley  V.  O'Connor,  15. 
Coons  V.  Chambers,  57. 
Copeland  v.  Hall,  70. 
Corey  v.  Bath,  122. 
Couch  V.  Stephens,  111. 
Coursin  v.  Insurance  Co   209. 
Craig  V.  Andrews,  81. 
Craig  V.  Grant,  276. 
Cree  v.  Walcott,  103. 
Creed  v.  Bank,  238. 
Creps  V.  Baird,  269. 
Crisman  v.  Roberts,  239. 
Crossman  v.  Turnpike  Co.  58. 
Crouch  V.  R.  R.  93. 
Crow  V.  Crow,  172. 
Crugar  v.  R.  R.  229. 
Crump  V.  Mining  Co.  242. 
Cullum  V.  Wagstaff,  85. 
Cumming  v.  Shand,  67. 
Cummings  v.  Henry,  78. 
Cunimings  v.  Taylor,  74. 
Cunningham  V.  Foster,  272. 
Cunningham  V.  Patten,  168. 
Curtis  V.  Mentz,  81. 
Cuvler  V.  Sanford,  194. 


D. 

Daggett  V.  Jordan,  90. 
Dana  v.  Fiedler,  276. 
Daniels  v.  Ins.  Co.  200. 
Daniels  v.  People,  156. 
Darling  v.  Dodge,  72. 
Dascomb  v.  R.  R.  283. 
Davis  V.  Kenaga,  138. 
Davis  V.  R.  R.  190. 
Deakers  v.  Temple,  241. 
Dean  v.  Erskine,  148. 
Deford  v.  Reynolds,  118. 
De  Graff  v.  Linen  Thread  Co. 275. 
Delaplane  V.  Crenshaw,  11. 
Delematyr  v.  R.  R.  222. 
Den  V.  Wrig-ht,  17. 
Denny  v.  Williams,  177. 
De  Ridder  v.  McKnight,  171. 
Des  Arts  v.  Leggett,  69. 
Deveanx  v.  Deveaux,  106. 
Dewart  v.  Clement,  243. 
Dickon's  Lessee  v.  Mahana,  109 
Dickinson  v.  Lott,  88. 
Dimmick  v.  R.  R.  92,  226. 
Dixon  V.  State,  109. 
Dobson  V.  Finley,  150. 
Dodge  V.  Rogers,  85. 
Don  V.  Swartwout,  89. 
Donally  v.  Ryan,  91. 
Doolittle  V.  Holton,  154. 
Dore  V.  Billings,  110. 
Dougherty  V.  Stevenson,  283. 
Douglass  V.  State,  214. 
Douglass  V.  Whittemorc,  150. 
Drake  v.  Ins.  Co.  211. 
Drehman  V.  Stifel,  132. 
Drew  V.  Towle,  80. 
Drown  V.  Smith,  265. 
Duffy  V.  People,  36. 
Duffy  V.  Presbyterian,  &c.  161. 
Duler  V.  Cowles,  87. 


Part  I.] 


TABLE   OF   CASES. 


721 


Bumas  v.  Robinson,  21. 
Duncan  v.  Welty,  277. 
Durant  V.  Banta,  196. 
Duren  V.  Getchell,  250. 
Durgin  v.  Coolidge,  11. 
Dygert  v.  Remenschnider,  247. 


E. 

Eames  V.  Blackhart,  273. 
Eastham  V.  Curd,  76. 
Eastman  V.  Cooper,  13. 
Eaton  V.  Jacobs,  168. 
Edelraan  V.  Yeakel,  82. 
Edgell  V.  Hart,  245. 
Edwards  v.  Goldsmith,  83. 
Edwards  v.  Marcy,  97,  106. 
Eiser  v.  Weissgerber,  86. 
Elliott  V.  Insurance  Co.  200. 
Ellis  V.  Kreutzinger,  17. 
Eman  v.  Brown,  56. 
Emerson  v.  Hogg,  158. 
Emery  v.  Irvings,  80. 
Ermell  V.  Whitford,  267. 
Ernst  V.  R.  R.  222,  230. 
Erwin  v.  Voorhees,  239. 
Estes  V.  Boothe,  86. 
Evans  v.  Carey,  88. 
Evans  v.  Harllee,  134. 
Evans  V.  Insurance  Co.  205. 
Ewalt  V.  Harding,  234. 
Ewing  V.  Ingram,  75. 
Executors  v.  Praytor,  267. 
Executrix  v.  Hatz's  Exec'r,  138. 
Express  Co.  v.  Will,  283. 


Fagin  v.  Connolly,  131. 
Fairbanks  v.  Woodhouse,  66. 
Farnsworth  v.  Sharp,  126. 
46 


Fatherlee  V.  Lawrence,  102. 

Fells  Point,  &c.  v.  Weeldon,  62. 

Ferguson  v.  Adm'r,  236. 

Ferguson  v.  Ferguson,  160. 

Fero  V.  R.  R.  222. 

Field  V.  Insurance  Co.  202. 

Field  V.  Reed,  272. 

Fife  V.  Commonw.  285. 

Fine  v.  St.  Louis  Pub.  Schools, 

101,  142. 
Finley  v.  Hanbest,  121. 
Fisher  v.  People,  46. 
Fisher  v.  Stevens,  130. 
Fitch  V.  Iron  Works,  111. 
Fitch  V.  Chapman,  266. 
Fletcher  v.  Ins.  Co.  206. 
Floyd  V.  Taylor,  152. 
Folsom  V.  Plumer,  84. 
Forshee  v.  Abi-ams,  45. 
Forsythe  V.  Matthews,  244. 
Foster  v.  Woodfin,  239. 
Foster  v.  Berkey,  241. 
Frank  v.  State,  69. 
Franklin  v.  State,  42. 
Frazie  v.  Griffie,  33. 
Freeman  v.  Rawson,  149. 
Freeman  v.  Loftis,  121. 
Fremantle  v.  R.  R.  218. 
Frink  v.  Potter,  224. 
Frost  V.  Adm'r,  107. 
Frost  V.  Martin,  185. 
Fuller  V.  Bean,  103. 
Fulton  V.  Alexander,  216. 
Funk  V.  Staats,  245. 
Funk's  Lessee  v.  Kincaid,  278. 
Furness  v.  Muck,  33. 


a. 

Gage  V.  Smith,  169. 
Gage  V.  Parker,  239. 
Gahagan  v.  R.  R.  230. 


722 


TABLE   OF   CASES. 


[Part  I. 


Gamwell  v.  Ins.  Co.  203. 
Garcelon  v.  Ins.  Co.  198, 
Gardner  v.  Boothe,  247. 
Gates  V.  Ins.  Co.  202. 
Gates  V.  Lebaunie,  253,  254. 
Gatling  v.  Newell,  138. 
Gerrish  v.  Mace,  247. 
Gentle  v.  Morrison,  151. 
Gere  V.  Murray..  251. 
Gerke  v.  Navigation  Co.  232. 
Gibson  v.  Love,  240. 
Gibson  v.  Hill,  243. 
Gill  V.  Libby,  93. 
Gillett  V.  Winier,  279. 
Gilpatrick  v.  City,  130,  271. 
Giuder  v.  Farnum,  250. 
Glasscock  v.  State,  75. 
Glassell  v.  Mason,  284. 
Glassey  v.  R.  R.  266. 
Godfrey  v.  Eames,  157. 
Goodal  V.  State,  260. 
Goodale  v.  Agric.  Soc.  227. 
Goodman  v.  Simonds,  113. 
Goodwyn  v.  Cheveley,  141. 
Googins  V.  Gilmore,  246. 
Gordon  v.  Uphani,  259. 
Graft  V.  Weakland,  162. 
Graham  v.  Hollinger,  98. 
Graham  v.  Van  Diemen's  Land 

Co.  136. 
Graham  V.  Smith,  249. 
Grant  v.  People,  53. 
Grant  V.  Newton,  94. 
Grantham  v.  Canaan,  191. 
Graves  v.  Shattuck,  213. 
Gray  v.  Hornbeck,  149. 
Green  v.  Hill,  10. 
Green  v.  Telfair,  76. 
Green  v.  Haines,  136. 
Green  v.  Humphrey,  172. 
Greene  v.  Barnwell,  121. 
Gregory  v.  Walker,  94. 
Gregory  v.  Inhab.,  &c.  221. 


Griffith  r.  Ely,  250. 
Griffith  V.  McCullum,  213. 
Griffiths  V.  Rigby,  71. 
Griswold  v.  Sheldon,  246. 
Guiney  v.  Bush,  111. 
Guppy  V.  Commonw.  21. 


H. 

Hadley  v.  Upshaw,  225. 
Hadley  v.  Importing  Co.  243, 
Hagett  V.  State,  54. 
Hailes  v.  Marks,  258. 
Hall  V.  Schuhardt,  24, 
Hall  V.  Gale,  155. 
Hall  V.  Renfro,  229. 
Hanna  v.  Phillips,  78. 
Harlan  V.  Brown,  274. 
Hart  V.  Stevenson,  235. 
Hart  V.  Borough,  133. 
Haskins  v.  Ins.  Co.  204, 
Hawk  V.  Ridgway,  271, 
Hawkins  v.  Carbines,  157, 
Hayden  v.  Manuf.  Co.  115, 
Hayes  v.  Waldron,  267, 
Haywood  v.  Harmon,  140. 
Hecker  v.  Sterling,.  144. 
Heffner  v.  Wernich,  179,  180. 
Heffner  v.  Metcalf,  245. 
Hegeman  v.  R.  R.  217,  220, 
Helmholtz  v.  Everingham,  57. 
Hendricks  v.  State,  120. 
Henry  v.  R.  R.  219, 
■Herbert  v.  Ford,  84. 
Herst  V.  De  Comeau,  286. 
Hetherington  v.  Clark,  125. 
Hicks  V.  Davis,  150. 
Hill  V.  R.  R.  229. 
Hill  V.  Town  of  New  Haven,  222. 
Hill  V.  Mason,  143. 
Hill  V.  Hobart,  136. 
HUl  V.  State,  119. 


Part  I.] 


TABLE   OF   CASES. 


723 


Hill  V.  Barney,  62. 
Hills  V.  London,  &c.  29,  30. 
Hilliard  V.  Gould,  131. 
riodgkins  V.  Hook,  244, 
Hodgkinson  v    Fernie,  232. 
Holbrook  v.  Nichol,  285. 
Ilolden  V.  R.  R.  226. 
HoUister  v.  Loud,  237. 
Holmes  V.  Doan,  130. 
Holmes  7)  Watson,  232. 
Homer  v.  Taunton,  77. 
Hoofnian  v.  Dauner,  145. 
Hooper  v.  Moore,  65. 
Hooper  v.  EdAvards,  85. 
Hopson  V   Bumwankel,  83. 
Home  V.  Puckett,  60. 
Horner  v    Horner,  183. 
Hough  r.  Ins.  Co.  205. 
House  V.  Metcalf,  169. 
Howard  v.  Smith,  21. 
Howard,  Lessee,  y.  Carpenter,  59. 
Howe  V.  Dewing,  59. 
Howe  V.  Keeler,  243. 
Hudic  V.  Bilger,  270. 
Hudson  V.  Weir,  190. 
Huelsekamp  v.  R.  R.  230. 
Hughes  V.  Pipkin,  136. 
Huguenin  v.  Legare,  235. 
Hull  V.  Lyon,  75. 
Hunt  V.  McP'arland,  144. 
Hunter  v.  Hubbard,  90. 
Huntzinger  v.  Harper,  239. 
nntchinsun  v.  Lord,  253. 
Hyde  v.  Stone,  117. 
Hyatt  V.  Griffiths,  159. 


I. 

Iglehart  v.  Jameson.  19. 
111.  Cent.  R.  R.  u.Whittemore,67. 
Inhab.    of  Veazie   v.   Inhab.    of 
Chester,  268. 


Inhab.  of  Fitchburg  v.  Inhab.  of 

Winchendon,  112. 
Insurance  Co.  v.  Evans,  111. 
Insurance  Co.  v.  Allen,  139. 
Insurance  Co.?;.Coates,201,210. 
Insurance  Co,  v.  Favorite,  204. 
Insurance  Co.  v.  Duffey,  205. 
Insurance  Co.  v.  Updegraff,  206. 
Insurance  Co.  v.  Marsh,  207. 
Insurance  Co.  v.  Winter,  209. 
Insurance  Co.  v.  Munday,  209, 
Insurance  Xyo.  V.  Evans,  211. 
Insurance  Co.  v.  Deale,  198. 
Iron  Co.  V.  Lomb,  165. 
Ish  V.  Chilton,  159. 
Israel  v.  Brooks,  256. 
Ivey  V.  State,  75. 

J. 

Jackson  v.  Dean,  244. 
Jaquith  v.  Hudson,  103. 
Jay  V.  Adams,  192. 
Jeff  (a  slave)  v.  State,  108. 
Jenness  v.  Berry,  82. 
Jennings  v.  People,  74. 
Jewett  V.  Smart,  11. 
Johns  V.  Davidson,  144. 
Johnson  v.  Haverhill,  221. 
Johnson  v.  Assignee,  252. 
Jones'  Case,  49. 
Jones  V.  Williamson,  21. 
Jones  V.  Jones,  110. 
Jones  V.  Brownfield,  112. 
Jones  V.  Hurlburt,  69. 
Journey  v.  Sharpe,  270. 
Judge  V.  Le  Claire,  79. 
Justice  V.  Kirlin,  76. 

Keen  v.  Preston,  172. 
Keena  v.  Kaufman,  169 


724 


TABLE    OP    CASES. 


TTart  I. 


Keeler  v.  Ins.  Co.  202,  210. 
Kecrl  V.  Bridgers,  184. 
Keister  v.  Miller,  280. 
Kelsea  v.  Haines,  176. 
Kendall  v.  Winsor,  159. 
Kernan  ??.  Edelman,  214. 
Keyser  v.  Evans,  168. 
Kidd  V.  Commonw.  181. 
Kidd  V.  Cromwell,  55. 
Kidder  v.  Parkhurst,  255. 
Kimball  v.  Estate,  88. 
Kimball  v.  Ins    Co.  235. 
Kimball  v.  Bates,  256. 
King  V.  Phillips,  241. 
Kingsbury  v.  Buchanan,  85. 
Klein  v.  Ins.  Co.  209. 
Kline  V.  Baker,  284. 
Klingensmith  v.  Exec'rs,  130. 
Knight  V.  Parker,  119. 
Knight  V.  Worsted  Co.  205. 
Knox  V.  Rives,  92. 
Krebs  v.  O'Grady,  129. 
Kuhtman  v.  Brown,  67. 
Kun's  Exec'r  v.  Young,  84. 


Lacy  V.  Mitchell,  258. 
La  Faye  v.  Mansfield,  163. 
Lambeth  v.  State,  282. 
Landis  v.  Landis,  102. 
Langhoff  v.  R.  R.  228. 
Large  v.  Ovis,  148. 
Laughlin  v.  Clawson,  259. 
Laume  v.  Gregg,  89. 
Law  V.  Cross,  71. 
Lawton  v.  Sager,  152. 
Le  Roy  v.  Ins.  Co.  196,  197. 
Lessee  v.  Inloes,  148. 
Levers  v.  Van  Buskirk,  192. 
Lewis  V.  Harris,  95. 
Lewis  V.  Chapman,  76. 


Lewiston  v.  R.  R.  80. 
Ligerson  v.  Pomeroy,  131. 
Lindauer  v.  Ins.  Co.  274. 
Lindsay  v.  Ins.  Co.  201. 
Lindsay  v.  Janson,  209. 
Lindsey  v.  Davis,  89. 
Linn  v.  Wright,  252. 
Linville  v.  AVelch,  234. 
Litchfield  v.  Garratt,  285. 
Lloyd  V.  Brinck,  16. 
Locke  V.  Rowell,  100. 
Lockwood  V.  Crawford,  65. 
Lodge  of  Masons  v.  Knox,  72. 
London  Savings  Fund  v.  Bank, 

129. 
Long  I'.  Rogers,  55. 
Lovett  V.  R.  R.  262. 
Lucas  IK  Nichols,  76. 
Lucas  V.  Johnson,  170. 
Lucas  V.  Daniels,  170. 
Luckhart  v.  Ogden,  137. 
Lyman  v.  U.  S.  Bank,  185. 


Macklot  V.  Dubreuil,  166. 
Maden  v.  Porterfield,  79. 
Magee  v.  Magee,  102. 
Magee  v.  Carmack,  139. 
Mahala  v.  State,  53. 
Maher  v.  People,  255. 
Maltby  v.  Chapman,  93. 
Maltus  V.  Shields,  63. 
Manning  v.  Dove,  240. 
Manser  v.  R.  R.  217. 
Manuf.  Co.  v.  Pendergast,  170. 
Manuf.  Co.  v.  Butler,  121. 
Mapel  V.  Naylor,  57. 
Maple  V.  Burnside,  100. 
Margam  v.  City  R.  R.  222 
Martin  ??.  Lespee,  71. 
Martin  v.  Angell,  85. 


Part  I.] 


TABLE    OF   CASES. 


725 


Martin  v.  Heirs,  125. 

Mason  v.  Williams,  97. 

Masser  v.  Fingle,  10. 

Masten  v.  Deyo,  260. 

Masters  v.  Ins.  Co.  202. 

Matthews  v.  Rice,  241. 

Matthews  v.  Poultney,  251. 

Maybee  v.  Sniffen,  127. 

Mays  V.  Williams,  280, 

Maverick  v.  Salinas,  250. 

McAulay  v.  Earnhart,  159. 

McAvoy  V.  Long,  80. 

McCall  V.  Davis,  250. 

McCanon  v.  Cassiday,  95. 

McCorry  v.  King's  Heirs,  10. 

McClung's  Executors  v.  Spots- 
wood,  129. 

McClurg  V.  Kelley,  171. 

McCullough  V.  McCullough,  17. 

McDonell  v.  Bank,  129. 

McGinity  v.  McGinity,  17. 

McGrath  v.  R.  R.  230. 

McKean  v.  Wagenblast,  57. 

McKiniiey  v.  McKinney,  154. 

McLaughlin  v.  Bank,  247. 

McMullan  v.  McKenzie,  90. 

McPherson  v.  State,  42. 

McQuesncy  v.  Heister,  192. 

McReynolds  v.  Lougenberger, 
265. 

McWilliams  V.  Town  of  Plaque- 
mine,  284. 

Meredith  v.  Commonw.  260. 

Merriam  v.  Cunningham,  262. 

Merrill  v.  Grinnell,  93. 

Merrill  v.  Richey,  275,  285. 

Merrill  v.  Inhab.  of  Whitefield, 
279. 

Merritt  v.  Lyon,  279. 

Meyer  u  R.  R.  231,  263. 

Miller  v.  Talcott,  88. 

Miller  v.  Lancaster,  88. 

Miller  v.  Lockwood,  95 


Miller  v.  Stewart,  100. 
Miller  v.  Pancoast,  246. 
Miller  v.  Fitchhorn, 
Milne  v.  Henry,  237. 
Mims  V.  Lockett,  111. 
Missisquoi  Bank  V.  Evarts,  283. 
Mitchell  V.  Ins.  Co.  196. 
Mix  V.  Ins.  Co.  194. 
Mohney  v.  Evans,  262. 
Montag  V.  Linn,  149. 
Montgomery  v.  R.  R.  226. 
Moore  v.  Lesber,  58. 
Moore  v.  Callishaw,  102. 
Moore  V.  Westervelt,  232. 
Morse  v.  Weymouth,  153. 
Mosher  v.  State,  57. 
Moshier  v.  R.  R.  226. 
Moultonboro'     V.     Tuftonboro', 

268. 
Mulhado  v.  R.  R.  230. 
Munroe  V.  Gates,  73. 
Murdock  v.  Sumner,  26. 
Murrell  V.  Whiting,  137. 
Mutual  Ins.  Co.  v.  Deale,  198. 
Muzzy  V.  Den,  104, 
Myers  v.  Malcolm,  79. 


Nagle  V.  Horner,  86. 
Nagle  V.  Mullison,  276. 
Naglee  v.  Ingersoll,  145. 
Nash  V.  Driscoe,  80, 
Nelson  v.  State,  45. 
Nevins  V.  Bank,  116. 
Newcomb  v.  State,  279. 
Newton,  Mary  C.  53. 
Newton  v.  AUis,  69, 
NichoU  V.  Ins.  Co.  128. 
Nicholson  v.  R.  R.  276. 
Noble  V.  Discount  Co.  188. 
Noel  V.  White,  155. 


726 


TABLE   OF   CASES. 


[Part  I. 


Noland  v.  State,  281. 
Norton  v.  Ins.  Co.  209. 
Norton  v.  Kearney,  251, 
Noyes  v.  Silliman,  73. 


o. 

O'Callaghau  v.  Booth,  165. 
Odd  Fellows  v.  Masser,  106. 
Odear  v.  McDonald,  111. 
Odlin  V.  Gove,  235. 
Ogletree  v.  State,  109. 
O'Hara  v.  Ricliardson,  167. 
Oldfield  V.  R.  R.  223. 
Olendorf  v.  Cook,  154. 
Oleson  V.  llenrickson,  282. 
Oliver  V.  State,  108. 
Opdyke  v.  Stevens,  146. 
Orr  V.  Lacey,  108. 
Osceola,  &c.  v.  Rost,  65. 
Ott  V.  Soulard,  142. 
Overton's  Heirs  V.  Exec'r,  160. 
Oxley  V.  Storer,  284. 


P. 

Page  V.  Cushing,  259. 
Fallen  v.  Le  Roy,  71. 
Parish  v.  Gates,  95. 
Parker  v.  Ebbetson,  68. 
Parker  V.  Hotchkiss,  268. 
Parkes  V.  Boston,  26. 
Parkins  v.  Dunham,  101. 
Parnett  V.  Anderson,  106. 
Parsons  V.  Brown,  166. 
Parsons  V.  Huff,  279. 
Partridge  v.  Patterson,  70. 
Patchin  v.  Devin,  267. 
Patchin  v.  Stroud,  101. 
Patrick  v.  Adm'r,  165. 
Patterson  v.  Boston,  26. 


Paul  V.  Joel,  116. 
Peck  V.  Bacon,  242. 
Peck  V.  Crouse,  244. 
Pendleton  v.  Stone  Dressing  Co. 

107. 
Pennewell  v.  Cullen,  68. 
Pennsylvania  v.  Ravenel,  112. 
People  V.  Alcott,  53. 
People  V.  Barrett,  53. 
People  V.  Glenn,  282. 
People  V.  Godwin,  53. 
People  V.  Goodwin,  53. 
People  V.  Jenness,  279. 
People  V.  Roberts,  255. 
People  V.  Supervisors,  250. 
People  V.  Wi  liarns,  125. 
People  V.  Wilson,  124. 
Peoria  V.  Calhoun,  67. 
Perkins  V.  Dacon,  176. 
Peterson  v.  Laik,  154. 
Pettingill  v.  Porter,  147. 
Pfomer  v.  People,  54,  260. 
Pierce  v.  Randolph,  81. 
Pierce  v.  Selleck,  279. 
Pierce  v.  State,  40. 
Piper  V.  White,  126. 
Pleasant  v.  State,  40. 
Pollen  V.  Le  Roy,  285. 
Pomeroy  v.  Bailey,  238,  247. 
Ponton  V.  Ballard,  117. 
Poppenhusen  V.  Falke,  122. 
Porter  v.  Havens,  57. 
Porter  v.  Patterson,  140. 
Prather  V.  Ross,  56. 
Pratt  V.  Battles,  151. 
Pratt  V.  Chase,  104. 
Prentice  V.  Dike,  89. 
Prentiss  V.  Blake,  151. 
Presbyterian   Soc.   v.  Smithers, 

273. 
Prescott  V.  Hayes,  119. 
Price  V.  Mazarge,  152. 
Prickett  V.  Badger,  79. 


Part  I.] 


TABLE   OF   CASES. 


727 


Primm  v.  Haven,  60. 
Putnam  v.  Bowker,  169. 


Quimby  v.  R.  R.  61. 
Quisenberry  v.  Quisenberry,  19. 


Rae  V.  Taylor,  160,  161. 
Ram  age  v.  Peterman,  145. 
Ramalay  v.  Leland,  225. 
Ranch  v.  Lloyd,  212. 
Randall  v.  Parker,  244. 
Ranney  v.  Higby,  55. 
Reed  v.  Reed,  192. 
Rees  V.  Jackson,  271. 
Reford  v.  Cramer,  109. 
Reinhart  v.  Miller,  126. 
Respass  v.  Young,  106. 
Reynolds  v.  Cox,  34. 
Reynolds  v.  Dechaums,  78,  240. 
Reynolds  v.  Richards,  83. 
Rhea  v.  Riner,  177. 
Rhines  v.  Baird,  117,  173. 
Rhoads  v.  Commonw.  14. 
Rice  V.  Porter,  179. 
Rich  V.  Eldridge,  278. 
Richards  V.  Elwoll,  150. 
Richmond  v.  R.  R.  228. 
Ricketts  Z'.  Pendleton,  116. 
Ridley  v.  Buchanan,  68. 
Riley  v.  Dickens,  55. 
Riley  v.  Riley,  160. 
Ripley  v.  Ins.  Co.  210. 
Ritchey  v.  Davis,  256. 
Rivers  v.  Thompson,  167. 
Robbins  v.  Dillaye,  195. 
Robbins  v.  State,  39. 
Robinson  v.  Adkins,  16. 


Robinson  v.  Greene's  Adm'r,  90 

Robinson  v.  New  Ins.  Co.  79. 

Robison  v.  White,  146. 

Rodman  v.  Gaylord,  146. 

Rogers  v.  Ackermau,  89,  106. 

Rogers  v.  Casey,  57. 

Rogers  v.  McCune.  221. 

Rogers  v.  West,  104. 

Rosenheim  v.  Ins.  Co.  202. 

Roth  V.  Colvin,  117. 

Rourke  v.  James,  104. 

R.  R.  V.  Armstrong,  227. 

R.  R.  V.  Ayres,  66. 

R.  R.  V.  Cavett,  186. 

R.  R.  V.  Fielding,  223. 

R.  R.  V.  Foster,  229. 

R.  R.  V.  Hall,  222. 

R.  R.  V.  Livermore,  60. 

R.  R.  V.  McTighe,  230. 

R.  R.  V.  Nunn,  222. 

R.  R.  V.  Ogier,  231. 

R.  R.  V.  Sanger,  231. 

R.  R.  V.  Shannon,  272. 

R.  R.  V.  State,  228. 

R.  R.  V.  Van  Steinburg,  227. 

R.  R.  V.  Worthington,  231. 

R.  R.  V.  Yarwood,  224. 

R.  R.  V.  Zebe,  276. 

R.  R.  r.  Young,  219. 

Rumfan  v.  Clark,  103. 

Russell  V.  Wentz,  105. 


s. 

Safet  V.  Hartman,  146. 
Saltmarsh  v.  Bower,  117. 
San  Antonio  v.  Lewis,  280. 
San  Francisco  v.  Clark,  212. 
Sanderson  v.  Reinstadler,  235. 
Sapp  V.  Neusom,  58. 
Sartor  v.  Sartor,  160. 
Savignac  v.  Garrison,  74,  142. 


728 


TABLE    OP   CASES. 


[Part  I. 


Savings  Fund  v.  Bank,  129. 
Sawyer  v.  Nichols,  33. 
Saw3'^er  v.  Smith,  160. 
Sawyer  v.  Spi)fford,  108. 
Sawyer  v.  Steamboat  Co.  233. 
Schenck  v.  Ins.  Co.  203,  210. 
Schilling  v.  Durst,  184. 
Schmidt  v.  Ins.  Co.  25,  26,  21. 
Schofield  V.  Ferrers,  258. 
Schottigcr  v.  Happle,  270. 
Schwartz  v.  Herrenkind,  58. 
Scott  V.  Buchanan,  140. 
Scott  V.  Peutz,  84. 
Seaward  V.  Malotte,  149. 
Sellers  v.  Johnson,  81. 
Sellers  v.  Jones,  183. 
Selman  v.  Wolf,  211. 
Sessions  v.  Town  of  Newport, 

214. 
Sexton  V.  Ins.  Co.  201. 
Seymour  v.  McCormick,  136. 
Sharon  v.  Davidson,  110. 
Shaw  V.  Davis,  12. 
Sheldon  v.  Ins.  Co.  205. 
Shepherd  v.  Ins.  Co.  203. 
Shepherd  v.  White,  80. 
Sherer  v.  Bank,  115. 
Sliultziier  V.  State,  156. 
Silverthorne  v.  Fowle,  81. 
Sims  V.  Boynton,  59. 
Simmons  v.  Morse,  *IQ. 
Slater  v.  Wood,  69. 
Slonecker  v.  Garrett,  129. 
Smalley -y.  Ilendrickson,  19,  111. 
Smiley  v.  Gambill,  102. 
Smith  V.  Clayton,  12. 
Smith  V.  Faulkner,  81. 
Smith  V.  Ilollister,  216. 
Smith  V.  Ins.  Co.  203. 
Smith  V.  Myers,  19. 
Smith  V.  O'Connor,  224. 
Smith  V.  Parker,  249. 
Smith  V.  R.  R.  218. 


Smith  V.  Russ,  214. 
Snow  V.  Parsons,  261. 
Snow  V.  R.  R.  222. 
Spaulding  V.  Hallenbeck,  86. 
Sperry  v.  Miller,  193. 
Spies  V.  Boyd,  149. 
Stage  Co.  V.  Walker,  112. 
Staiuinger  v.  Andrews,  141. 
Stake  V.  Burrell,  85. 
Stanley  v.  Bank,  115. 
Stark  V.  Barrett,  148. 
Starkey  v.  People,  281. 
State  V.  Biddle,  108. 
State  V.  Allen,  256. 
State  V.  Canon,  210. 
State  V.  Canterbury,  233. 
State  V.  Clements,  260. 
State  V.  Crateau,  10,  42. 
State  V.  Dawdry,  36. 
State  V.  Delong,  149. 
State  V.  Dula,  69. 
State  V.  Ephraim,  63. 
State  V.  Flye,  121. 
State  V.  Ilarkin,  20. 
State  V.  Hawley,  121. 
Slate  V.  Ilaj'nes,  53. 
State  V.  Hundley,  280. 
State  V.  Jones,  50. 
State  V.  Johnson,  216. 
State  V.  Jones,  260. 
State  V.  Jurche,  45. 
State  V.  Learnard,  134. 
State  V.  Lizemore,  140. 
State  V.  Maine,  50. 
State  V.  Marston,  269. 
State  V.  Northumberland,  268 
State  V.  Ostrander,  53. 
State  V.  Robinson,  120. 
State  V.  Rush,  256. 
State  V.  Salika,  46. 
State  V.  Snyder,  13. 
State  V.  West,  13. 
State  V.  Woodward,  214. 


Pabt  I.] 


TABLE   OF   CASES. 


729 


State  V.  Center,  281. 
State  V.  Prine,  284. 
State  V.  Williams,  284. 
Staylor  v.  Ball,  234. 
Steagal  v.  McKeller,  135. 
Steamboat  v.  Chapman,  67. 
Steamboat  v.  Hopkins,  67. 
St.  John  V.  Mayor,  212. 
Steifey  v.  Carpenter,  157. 
Stevens  v.  Thornton,  186. 
Stevens  v.  Vroman,  285. 
Steward  v.  Strippleman,  252. 
Steward  v.  Thomas,  243. 
Stewart  v.  English,  254. 
Stewart  v.  Howard  College,  225. 
Stilwell  V.  Staples,  204. 
Stith  V.  Lookabill,  127. 
Stockton  y. 'Graves,  127. 
Stone  V.  Danbury,  134. 
Stone  V.  Miller,  184. 
Stover  V.  Ellis,  126. 
Streeter  v.  Streeter,  71. 
Strozier  v.  Carroll,  279. 
Swain  v  Etling,  180,  189. 
Swan  V.  Tappan,  257. 
Swearingen  v.  Leach,  278. 
Sweem  v.  Steele,  272. 
Swift  V.  Bennett,  262. 
Swift  V.  Newbury,  233. 
Swinnerton  v.  Ins.  Co.  208. 
Symmes  v.  Brown,  150. 
Symonds  v.  Pain,  117. 


T. 

Tabor  v.  Staniels,  277. 
Taylor  v.  Allen,  186. 
Taylor  v.  Ins.  Co.  233. 
Taylor  v.  Jones,  125. 
Taylor  v.  Watkins,  150. 
Terry  v.  State,  278. 
Tessin  v.  Ins.  Co.  198. 


Thorn  v.  Bell,  130. 
Thomas  V.  Dunaway,  78. 
Thomas  v.  Thomas,  80. 
Thomason  v.  Odum,  29. 
Thompson  v.  Blanchard,  244. 
Thompson  v.  City,  156. 
Thornton  v.  Thompson,  90. 
Tiley  v.  Moyers,  144. 
Tobin  V.  Gregg,  84. 
Tobin  V.  Shaw,  58,  285. 
Todd  V.  Philhower,  146. 
Tollis  V.  ToUis,  75. 
Torbert  V.  Hayden,  246. 
Town    of  Tolland  v.  Town   of 

Willington,  268. 
Travis  V.  Cosver,  146. 
Traynor  v.  Johnson,  110. 
Trew  V.  Ins.  Co.  209. 
Tucker  v  Spalding,  122. 
Tucker  v.  Wilamonicz,  196. 
Tully  V.  Harloe,  155. 
Tupp  V.  Lyman,  75. 
Turrill  V.  R.  R.  122. 
Turton  v.  Burke,  61. 
Tuttle  V.  Brown,  89. 


u. 

Updike  V.  Skillraan,  127. 
Upton  V.  Townsend,  105. 
U.  S.  V.  Alden,  255. 
U.  S.  V.  14  Packages,  84. 
U.  S.  V.  Armstrong,  261. 
U.  S.  V.  Baptiste,  49,  50. 
U.  S.  V.  Jackalow,  147. 
U.  S.  V.  Morris,  36. 
U.  S.  V.  Pedro  Gilbert,  63. 
U.  S.  V.  Sanders,  64. 
U.  S.  V.  Sanders,  286. 
U.  S.  V.  Sarchett,  34. 
U.  S.  V.  Shaw,  55. 
U.  S.  V.  Small,  73. 


730 


TABLE    or   CASES. 


[Part  I. 


Valentine  v.  Packer,  128. 
Valkenberg  v.  Rogers,  55. 
Vallance  v.  Ins.  Co.  251. 
Valton  V.  Ins.  Co.  204. 
Van  Blarcom  v.  Frike,  157. 
Van  Buskirk  v.  Levy,  182. 
Van  Hook  v.  Walton,  239. 
Vasquez  v.  Ewing,  142. 
Vedder  v.  Fellows,  66. 
Verzan  v.  McGregor,  27. 
Von  Latham  v.  Libby,  255. 


Wade  V.  Walden,  256. 

Wait  ?;.  Day,  248. 

Wakefield  v.  Fairman,  270. 

Wakeman  v.  Dalley,  238. 

Waldheim  v    Sichel,  256. 

Walker  v.  Butler,  105. 

Walker  v.  Emerson,  191. 

Walker  v.  Stetson,  234. 

Wallace  v.  Coil,  15. 

Waller  v.  Von  Phul,  250. 

Walworth  v.  Eeadsboro',  20. 

Walworth  v.  Seaver,  116. 

Ward  V.  Latimer,  188. 

Ward  V.  Law  Property  Assur- 
ance, 207. 

Ware  v.  Ware,  161. 

Warner  v.  Miltenberger,  61. 

Warner  v.  Norton,  242. 

Warnick  v.  Groshalz,  70. 

Warren  v.  Jones,  71. 

Washington  Ins.  Co.  v.  Mer- 
chants' Ins.  Co. 

Water  Commissioners  v.  Burr, 
264. 

Waterman  v.  R.  R.  218. 

Waters  v.  Waters,  191. 


Watson  V.  Larpley,  182. 
Watson  V.  Walker,  175. 
Waugh  V.  Brittain,  35. 
Way  V.  Butterworth,  68. 
Weathers  v.  Mudd,  276. 
Weaver  v.  Page,  114,  260. 
Webster  v.  Stearns,  91. 
Weed  V.  Weed,  276. 
Weeks  v.  Turnpike  Co.  220. 
Weeton  y.  Ilodd,  116,  135. 
Welde  V.  Carne,  178. 
Wells  V.  Burnett,  17. 
West  V.  Best,  87. 
West  Gardiner  v.  Farmingdale, 

284. 
Western  Stage  Co.  v.  Walker, 

265. 
Wheelden  v.  Lowell,  69. 
Wheeler  v.  Sehroeder,  150. 
Whetstone  v.  Bowser,  211. 
Whirley  v.  Whiteman,  10. 
Whitcomb  v.  Hoyt,  101. 
White  V.  Buniley,  147. 
White  V.  Hermann,  142. 
White  V.  Jordan,  88. 
White  V.  Stillman,  196. 
White  V.  Walker,  111. 
Whitney  v.  Swett,  70. 
Whittaker  v.  Clark,  94. 
Whittlesey  v.  Kellogg,  149. 
Wickliffe  v.  Lynch,  277. 
Wiggins  V.  Halley,  167. 
Wilder  v.  City,  167. 
Wilder  v.  Sprague,  139. 
Willard  v.  Germer,  185. 
Williams  V.  Bentley,  84,  250. 
Williams  v.  Bridge,  146. 
Williams  IK  Mclntyre,  17. 
Williams  V.  O'Keefe,  226. 
Williams  v.  Reynolds,  194. 
Williams  v.  State,  44. 
Williams  v.  Whitlock,  269. 
Williams  v.  Woods,  68. 


Part  IL] 


TABLE   OF   CASES. 


731 


Williams  i;.Town  of  Clinton,  233. 
Williamson  v.  McGinnis,  181. 
Williston  V.  Morse,  143. 
Wilson  V.  Forsytbe,  253. 
Wilson  V.  Hanson,  184. 
Wilson  V.  Inloes,  10,  14t. 
Wilson  V.  Ins.  Co,  201. 
Wilson  V.  Whitfield,  160. 
Wing  V.  Gray,  68. 
Winship  v.  Buzzard,  84. 
Winship  v.  Enfield,  214. 
Winter  v.  Norton,  95. 
Winter  v.  Peterson,  213. 
Wise  V.  Wimer,  253, 
Wolf  V.  Parham,  112. 
Woodbury  v.  Taylor,  191. 
Woodman  v.  Chesley,  80, 
Woodward  v.  Hancock,  216. 
Woolley  V.  Fry,  245. 


Worcester  Med.    Inst.   v.  Har- 
ding", 85, 
Wright  V.  Grover,  238. 
Wyatt's  Adm'r  v.  Steele,  115. 
Wyley  v.  Stanford,  1*79, 
Wylie  V.  Sraitherman,  257. 
Wyman  v.  Adams, 
Wynne  v.  Glidewell,  251. 

Yates  V.  Alden,  242. 
Younger  v.  Welch,  113,  190. 

z. 

Zabriskie  v.  Smith,  242. 
Zeigler  v.  Maddox,  246. 
Zemp  V.  R.  R.  225. 


I>A.IIT     II. 


^. 


Adams  v.  Capron,  343. 
Adams  v.  Smith,  333, 
Adm'r  v.  Maloney,  341. 
Allen  V.  Allen,  429. 
Anderson  v.  Kincheloe,  341. 
Arbuckle  v.  Thompson,  305. 
Armistead  v.  Brook,  406. 
Armstrong  v.  Pierson,  341. 
Atkinson  v.  Gatcher,  387. 
Ault  V.  Sloan,  491, 
Austin  V.  Lalk,  388. 
Ayres  v.  Moulton,  357,  419. 


B. 


Bagley  v.  Smith,  301. 
Bailey  v.  Bailey,  425. 
Bain  v.  Wilson,  330. 
Baker  v.  Robinson,  334. 
Baker  v.  Young,  434, 
Baldwin  v.  Killian,  362. 
Baldwin  v.  McKay,  359. 
Bank  v.  Curren,  444. 
Bank  v.  Currie,  357. 
Bank  v.  Eldred,  379. 
Bank  v.  Stone,  360. 
Barbee  V.  Laws,  433. 


732 


TABLE    OF   CASES. 


[Part  II. 


Baibour  v.  White,  481. 
Bartholomew  v.  Ins.  Co.  382, 
Bast  V.  Alford,  371. 
Bay  V.  Sullivan,  334. 
Beale  v.  Cullum,  334. 
Bell's  Adm'r  v.  Gray,  329. 
Bell's  Adm'r  v.  Troy,  302. 
Benedict  v.  Ilaggin,  290. 
Benedict  v.  State,  471. 
Birney  v.  Tel.  Co.  305. 
Black  V.  Thornton,  351. 
Blackman  v.  State,  358. 
Blake  v.  Hedges,  341. 
Boggs  V.  Clilton,  316. 
Bond  V.  Corbett,  361. 
Bower  v.  Earl,  392. 
Bowler  v.  State,  472. 
Boyce  v.  Stage  Co.  328. 
Boyd  V.  Foot,  345. 
Boynton  v.  Holmes,  341. 
Bradley  v.  State,  377. 
Bradshaw  v.  Mayfield,  353. 
Breese  v.  State,  410. 
Brewin  v.  Farrell's  Estate,  351. 
Bridenthall  v.  Davidson,  442. 
Broadbent  v.  Scientific,  &c.  318. 
Broadus  v.  Nelson,  295. 
Brooks  V.  R.  R.  426. 
Brown  v.  Brooks,  334. 
Brownfield  v  Brownfield,  382. 
Bruch  V.  Carter,  423. 
Burns  v.  Kelley,  385. 
Buttrara  v.  Jackson,  411. 
Byrne  v.  Smith,  335. 


o. 

Cady  V.  Owen,  336. 
Cain  V.  Penix,  425. 
Caldwell  v.  Kennison,  424. 
Calvin  v.  Warford,  290. 
Camp  V.  Heelan,  387. 


Camp  V.  Phillips,  353. 
Campbell  v.  Becket,  308. 
Campbell  v.  Miller,  381. 
Carroll  v.  Evans,  418. 
Case  V.  Williams,  416,  419. 
Castle  V.  BuUard,  371. 
Castner  v.  Steamboat,  361. 
Causey,  Exec'r,  v.  Willey,  485, 
Chamberlain   &    Co.  v.  Master- 
son,  297. 
Chamblee  v.  Tarbox,  325. 
Chapman  v.  Cawrey,  334. 
Chapman  v.  R.  R.  335. 
Chappell  V.  Cady,  346. 
Chichester  v.  Whiteleather,  408. 
Chipman  v.  Adm'x,  375. 
Chissom  v.  Lamconl,  344. 
Choice  V.  State,  454. 
Clark  V.  State,  314. 
Clark  V.  W^ood,  303. 
Clarke  v.  Hammall,  417. 
Clarke's  Adm'r  v.  R.  R.  443. 
Clem  V.  State,  377. 
Clough  V.  Patrick,  419. 
Cluskey  v.  St.  Louis,  310. 
Coal  and  Iron  Co.  333. 
Coal  and  Oil  Co.  v.  R.  R.  383. 
Cole  V.  Cole's  Adm'r,  349. 
Commissioner  v.  Clark,  358. 
Commonw.  v   Barry,  424. 
Commonw.  v.  Webster,  469,470. 
Comstock  V.  Smith,  372. 
Conaway  v.  Shelton,  406,  491. 
Conlin  v.  R,  R.  389. 
Connehan  v.  Ford,  345. 
Conrad  V.  Lindley,  327. 
Cook  V.  Green,  309. 
Cook  V.  Mackrell,  348. 
Coppage  V.  Commonw.  317. 
Corney  v.  Tompkins,  333. 
Cotton  V.  State,  303,  352. 
Coughlin  V.  People,  388. 
County  V.  Pitcher,  373. 


Part  II.] 


TABLE   OF   CASES. 


733 


Crawford  V.  State,  370,  449. 
Crawford's     Adra'r    v.     Beall's 

Exec'r,  829. 
Crow  V.  State  use,  &c.  435. 


Dassler  v.  Wisley,  353. 
Davis  V.  Elliott,  341. 
Davis  V.  Perley,  325. 
Deakers  v.  Temple,  362. 
Dennis  v.  McLaurin,  333. 
Deppe  V.  R.  R.  400. 
Derby  v.  Gallup,  394. 
Des  Moines  v.  Riley,  340. 
Devine  v.  Martin,  340. 
Dick  V.  State,  344. 
Dillon  V.  McRae,  375. 
Dime  Savings,  &c.  V.  Bank,  296. 
Ditmars  V.  Commonw.  350. 
Dixon  V.  State,  314. 
Doan  V.  State,  465. 
Dodge  V.  Rogers,  303. 
Doe  V.  Riley,  340. 
Donohoo  V.  State,  399. 
Dorsett  v.  Crew,  313. 
Draper  i\  Ellis,  394. 
Drinkard  v.  Ingram,  416. 
Dry  den  v.  Britton,  445. 
Dunlap  V.  Robinson,  354. 
Durant  v.  Burt,  350. 
Durant  v.  People,  464. 
Dwyer  v.  Dunber,  384. 


E. 

Easterling  v.  State,  291. 
Eddy  V.  Gray,  420. 
Eden  v.  Lingenfetter,  418. 
Edgar  v.  State,  318. 
Eldridge  v.  Hawley,  364. 


Ely  V.  Tescb,  425. 
Evans  v.  Walker,  436. 
Express  Co.  v.  Kountz,  295. 
Express  Co.  v.  Parsons,  382,481. 


Fahnestock  v.  State,  456. 

Falk  V.  People,  451. 

Fannon  v.  Robinson,  478. 

Farquhar  v.  Dallas,  289. 

Farrall  V.  State,  411. 

Fells    Point    Savings    Inst.    v. 

Adm'r,  304. 
Ferguson  v.  Adm'r,  377. 
Finn  v.  Clark,  481. 
Firman  v.  Blood,  310. 
Fisher  v.  Forrester,  477. 
Fisher  v.  People,  300,  306,  338. 
Fisher  v.  Stevens,  475. 
Fitzgerald  v.  State,  452. 
Flack  V.  Neill,  374. 
Flowers  v.  Helm,  344. 
Folk  V.  Wilson,  357. 
Fonts  V.  State,  459. 
Fort  V.  Barnett,  478. 


a. 

Gaither  v.  Ferbee,  443. 
Gas  Co.  V.  Freeland,  490. 
Gehr  v.  Hagerman,  363. 
Gibson  v.  Hill,  416. 
Gibson  v.  Webster,  393. 
Gilkey  v.  Peeler,  338. 
Gill  V.  People,  313. 
Gillett  V.  Phelps,  370. 
Golding  V.  Merchant,  380. 
Goldsborough  v.  Cradie,  333. 
Gonsalis  v.  Gearhart,  334. 
Gray  v.  Burk,  357. 


734 


TABLE    OF   CASES. 


[Part  II. 


Greeley  v.  Thomas,  356. 
Gregory  v.  Choatliam,  334. 
Gresham  v.  Tucker,  405. 
Grimes  v.  Martin,  326. 
Groft  V.  Wcakland,  363. 
Grubc  V.  Nichols,  35T. 
Guerin  v.  Hunt,  361. 
Gurney  v.  Smithsou,  409. 


H. 

Hackett  v.  R.  R.  433. 
Hair  v.  Little,  432. 
Ilakelnath  v.  Stookey,  356. 
Hall  V.  Brown,  358. 
Hall  V.  Renfro,  399,  478. 
Hall  V.  State.  300. 
Hamilton  v.  Bank,  361. 
Hamilton  v.  Manuf.  Co.  354. 
Hamilton  v.  R.  R.  346. 
Haney  v.  JNIarsliall,  344. 
Hardey  v.  Turney,  314. 
Harper  v.  Madren,  334. 
Harrison  v.  Powell,  337. 
Hartley  v.  Markel,  334. 
Hasbrough  v.  Milwaukee,  318. 
Haskins  v.  Haskins,  372. 
Hass  V.  State,  340. 
Hassell  v.  Nutt,  341. 
Hatcher  v.  State,  336. 
Hawk  V.  Ridgway,  358. 
Hawkins  v.  Hudson,  298, 
Hays  V.  Hynds,  386. 
Hays  V.  Paul,  326. 
Head  v.  Langworthy,  316. 
Herndon  v.  Bryant,  394. 
Hessing  v.  McCloskey,  334,  349, 

393. 
Hibler  v.  McCartney,  414. 
Hill  V.  Canfield,  356,  441. 
Hill  V.  Wright,  321. 


Hofelman  v.  Valentine,  400. 
Hoffman  v.  Ins.  Co.  408. 
Hogg  V.  State,  335. 
Holbruok  v.  R.  R.  334. 
Holden  v.  Hurlburt,  384. 
HoUiday  v.  Burgess,  476. 
Holmes  v.  Watson,  434. 
Hood  V.  Hood,  296,  370. 
Hook  V.  George,  484. 
Hooker  v.  Johnson,  354. 
Hooker  v.  Newton,  431. 
Hooksett  V.  Co.  416. 
Hopkinson  v.  People,  410. 
Home  V.  State,  343. 
Hotchkiss  V  Hodge,  334. 
?Iovey  V.  Hobson,  477. 
Hovey  v.  Thompson,  439. 
Howard  v.  O'Neill,  488. 
Howell  V.  Manuf.  Co.  489. 
Huffman  v.  Ackley,  396. 
Hughes  V.  Marty,  402. 
Hunnewell  v.  Hobart,  412. 


I. 

Insurance  Co.  v.  Nelson,  354. 
Insurance  Co.  v.  Baring,  448. 


J. 

Jamson  v.  Quivey,  327. 
Jarnigan  v.  Fleming,  417. 
Jennison  V.  Dearings's  Exec'rs, 

382. 
Johnson  v.  Kent,  436. 
Johnson  u.  State,  467. 
Johnson  v.  White,  337. 
Jones  V.  Briscoe,  334. 
Jones  V.  Post,  435. 
Josephine  (a  slave)  V.  Slate,  339. 


Part  II.] 


TABLE    OF   C^8ES< 


735 


Kariga  v.  Greb,  382. 
Karney  V.  Paisley,  334. 
Keech  v.  R.  R.  333. 
Keenan  v.  Ins.  Co.  326. 
Kennedy  v.  People,  334,  339. 
Kennedy  v.  R.  R.  415. 
Keon  V.  R.  R.  362. 
Kimbro  v.  Hamilton,  427. 
King  V.  King,  353,  427. 
King  V.  Nelson,  398. 
Kirland  v.  State,  375. 
Knowles  v.  People,  465. 
Knox  V.  Easton,  392. 
Kraak  v.  Wolf,  323. 

Labor  v.  Cooper,  333. 
Lachner  v.  Salomon,  346. 
Lackhard  v.  Luker,  489. 
Lamar  v.  Glawson,  427. 
Lancaster  v.  State,  368. 
Lasalle  v.  Wells,  310. 
Law  V.  Cross,  327. 
Leaptrot  v.  Robertson,  SIL 
Lee  V.  Quirk,  417. 
Leightori  v.  Sargent,  337. 
Lincoln  v.  Wright,  289. 
Linn  v.  Wright,  289. 
Lobdell  V.  Hall,  378. 
liombard  V.  Martin,  396. 
Long  V.  State,  314. 
Loudenback  v.  Collins,  342. 
Love  V.  Wyatt,  354. 
Luke  V.  Johnnycake,  339. 
Luman  v.  Kerr,  404. 
Lynch  v.  State,  450. 

Madsden  v.  Ins.  Co.  305. 
Maffitt  V.  Cresslor,  334. 


Maltby  v   R.  R.  407. 
Manuf.  Co   V.  Bartram,  399. 
Maria  (a  freedwoman)  v.  State, 

451,  452. 
Marshall  v.  Flinn,  303. 
Marshall  v.  Ins.  Co.  361. 
Mask  V.  State,  329,  342,  461. 
Masters  v.  Town  of  Warren,  292. 
Matthews  v.  Hamilton,  355. 
Maul  V.  State,  474. 
Mayor  v.  Trimble,  401. 
Mays  V.  Hogan,  328. 
McCaleb  v.  Smith,  311. 
McClane  v.  Thomas,  489. 
McClure  v.  Williams,  360,  363. 
McCracken  v.  Webb,  370. 
McCrown  v.  Schrimf,  396. 
McDaniel  v.  Crosby,  336. 
McDonell  v.  Dodge,  374. 
McDougal  V.  Shirley,  342. 
McEwen  v.  Morey,  364. 
McGuire  v.  State,  474. 
Mclntyre  v.  Kline,  397. 
McKay  v.  Bellows,  485. 
McKinney  v.  Hurtman,  295. 
McKitchen  v.  McBean,  334. 
McKnight  v.  Ratcliffe,  384. 
McKown  V.  Craig,  441. 
McLean  v.  Clark,  294. 
McMinn  v.  Whelan,  359. 
McNeill  V.  Arnold,  426. 
Meredith  v.  Crawford,  316. 
Merritt  v.  Merritt,  358. 
Miles  V.  Davis,  320, 
Miles  V.  Douglas,  408. 
Millard  v.  Lyons,  300. 
Miller  v.  Adm'r,  344. 
Mills  V.  Mabon,  334. 
Milner  v.  Wilson,  318. 
Mimms  v.  State,  355,  467. 
Moffatt  V  Conklin,  354 
MoflBt  V.  Cressler,  394 
Monroe  v.  State,  453. 
Moore  v.  Meacham,  307. 


736 


TABLE   or   CASES. 


[Part  II. 


Moore  v.  Sanboim,  361. 
Morgan  V.  Collins,  487. 
Morris  v.  Bowman,  477. 
Morris  V.  Hall,  429. 
Morris  v.  Piatt,  288. 
Morse  v.  Oilman,  402. 
Moye  V.  Herndon,  333. 
Mumford  v.  Thomas,  334. 
Murphy  v.  People,  334,  395. 
Murphy  v.  State,  297. 
Myatts  V.  Moore,  318. 
Myers  v.  Walker,  427. 


isr. 

Nelson  u.  Hardy,  334. 
Newman  v.  Edwards,  305. 
Nichols  V.  Mercer,  347. 
Niles  V.  Sprague,  299. 
Norfleet  v.  Sigman,  379. 


o. 

O'Brien  v.  People,  459. 
Ochletree  v.  Carl,  396. 
O'Connell  v.  State,  454. 
O'Connor  v.  Guthrie,  308. 
O'Halloran,  466. 
Oliver  V.  Chapman,  333,  417. 
Orth  V.  Clutz,  400. 
Oswald  V.  Kennedy,  434. 
Owen  V.  Owen,  288. 


Parker  v.  Fergus,  380. 
Parker  v.  Jenkins,  430. 
Parkhurst  v.  R.  R.  298,  478. 
Pate  V.  Wright,  315. 
Patterson  v.  Kountz, 


Patterson  v.  People,  325,  458. 
Payne  v.  Billingham,  334. 
Payne  v.  Commonw.  453. 
Pearson  v.  Snodgrass,  357. 
Pelamonges  v.  Clark,  334. 
People  V.  Ah  Fong,  313. 
People  V.  Bagnall,  449. 
People  V.  Beeler,  314. 
People  V.  Bonney,  455. 
People  V.  Byrnes,  453. 
People  V.  Campbell,  376,  463. 
People  V.  Chares,  314. 
People  V.  Cook,  463. 
People  v.  Cronin,  466. 
People  V.  Dodge,  326. 
People  V.  Garbut,  311. 
People  V.  Garcia,  330. 
People  V.  Garnett,  454. 
People  V.  Holson,  335,  374. 
People  V.  Hurley,  335. 
People  V.  Kelley,  467. 
People  V.  Lachanais,  473. 
People  V.  March,  342. 
People  V.  Pool,  360. 
People  V.  Sears,  310. 
People  IK  Strong,  464. 
People  V.  Taylor,  409,  422. 
People  V.  Williams,  361. 
Pettingill  v.  Porter,  291. 
Pfomer  V.  People,  455. 
Phipps  V.  State,  476. 
Picker  v.  Haidom,  345. 
Pickett  V.  Crook,  432. 
PiersoU  V.  Neill,  446. 
Pilling  V.  Otis,  484. 
Plank  Road  V.  Hoffman,  342. 
Piatt  V.  People,  389. 
Pleasants  v.  Scott,  387. 
Plummer  v.  Newdigate,  489. 
Polly  V.  McCall,  302. 
Pool's  Heirs  v.  Pool's  Exec'r,  445 
Potter  V.  Wooster,  478. 
Pratt  V.  Rawson,  420. 


Part  II.] 


TABLE   OP   CASES. 


737 


Preston  v.  Leighton,  342. 
Price  V.  Mazarge,  348,  419. 
Prindeville  v.  People,  310. 
Pugh  V.  McCarty,  296. 


Quint  V.  Silver  Mining  Co.  400. 


Ralston  v.  Langden,  326. 
Rathbone  v.  Ins.  Co.  391. 
Eay  V.  Wooters,  313. 
Rice  V.  State,  334. 
Ritle  V.  Commonw.  349. 
Riviere  v.  McCormick,  291. 
Robinson  v.  Varnell,  349. 
Rockwood  V.  Poundstone,  426. 
Rogers  v.  Brightman,  337. 
Rollings  V.  Gate,  367. 
Roots  V.  Tyner,  354,  408. 
Rosenbaums  v.  Weedon,  324, 326. 
Rosser  v.  Barnes,  353, 
Rosser  v.  McColly,  476. 
Roth  V.  Wells,  425. 
R.  R.  V.  Bartram,  440. 
R.  R.  V.  Baxter,  345. 
R.  R.  V.  Bibb,  444. 
R.  R.  V.  Blocker,  376. 
R.  R.  V.  Chennewith,  368. 
R.  R.  V.  Daniels,  315. 
R.  R.  V.  Dunn,  377. 
R.  R.  V.  George,  391. 
R.  R.  V.  Hagan,  409. 
R.  R.  V.  Harper,  381. 
R.  R.  V.  Kendrick,  419. 
R.  R.  V.  Kendrick,  377. 
R.  R.  V.  Lafferty,  376. 
R.  R.  V.  Laffertys,  306. 
R.  R.  V.  Manbv,  340. 
47 


R.  R.  V.  Manly,  431. 

R.  R.  V.  Miller,  377. 

R.  R.  V.  Moore,  442, 

R.  R.  V.  Payne,  371. 

R.  R.  v,  Paitlow,  351. 

R.  R,  V.  Patterson,  355. 

R.  R.  V.  Polly,  306. 

R.  R.  V.  Porter,  356. 

R.  R.  V.  Porter,  420. 

R.  R.  V.  Reslay,  288. 

R.  R.  V.  Resley,  307. 

R.  R.  V.  Resley,  348. 

R.  R.  V.  Sanger,  369. 

R.  R.  V.  Schumaker,  333. 

R.  R.  V.  Skeels,  356. 

R.  R.  V.  Snyder,  402. 

R.  R.  V.  South,  341. 

R.  R,  V.  Stallman,  365. 

R.  R.  V.  State,  337. 

R.  R.  V.  Tighe,  409. 

R.  R.  V.  Utley,  392. 

R.  R.  V.  Van  Patten,  355. 

R,  R,  V.  Whitton,  324, 

Ruble  V.  McDonald,  343. 

Rupp  V.  Orr,  342. 

Russ  V.  Steamboat,  334,  424. 

Russell  V.  Ely,  419. 

Russell  V.  Erwin's  Adm'r,  400. 

Ryan  v.  Jackson,  290. 


s. 

Sadler,  Adm'r,  v.  Sadler,  332. 
Sanborn  v.  School  District,  385, 
Sater  v.  Plank  Road  Co.  434, 
Savings  Inst,  v.  Weedon,  363. 
Schilling  v.  Kratt,  483. 
Sears  v.  Levy,  378. 
Secor  V.  Pestana,  395, 
Selden  v.  Green,  330. 
Shank  v.  State,  423. 
Sharp  V.  Bums,  329. 


T38 


TABLE   OF   CASES. 


[PXET  II. 


Shaw  V.  Saum,  343. 
Sherman  v.  Dutch,  410. 
Sikes  V.  Baer,  388,  486. 
Simmons  r.  Putnam,  340. 
Sinclair  f.  Jackson,  4H. 
Sinclair  v.  JMurphy,  347. 
Singlotou  V.  Pacific  R.  R.  441. 
Skinner  v.  State,  363. 
Sloan  V.  Van  Wyck,  438. 
Small  V.  Brainard,  40t. 
Smith  V.  Crichton,  318. 
Smith  V.  Curtis,  435. 
Smith  V.  Richmond,  305. 
Smith  V.  Sasser,  415. 
Smiihwick  v.  Andrews,  353,477. 
Snively  v.  Fahnestock,  305. 
Society  v.  Hubbell,  373. 
Sparks  v.  Commonw.  472. 
Spaulding  v.  Hallenbeck,  488. 
Stacy  V.  Cobbs,  424. 
State  V.  Anderson,  334. 
State  V.  Blackwelder,  308. 
State  V.  Brainard,  355. 
State  V.  Brantley,  329. 
State  V.  Byrne,  454. 
State  V.  Carnahan,  467. 
State  V.  Christmas,  325. 
State  V.  Clara,  403. 
State  V.  Collins,  303. 
State  V.  Danbert,  442. 
State  ?;.  Downer,  476. 
State  V.  Ford,  472. 
State  V.  Frank,  471. 
State  V.  Fulkerson,  299. 
State  V.  Gillick,  461,  462. 
State  V.  Green,  330. 
State  V.  Harald,  334. 
State  V.  Harris,  451. 
State  V.  Harrison,  415. 
State  V.  Haywood,  465. 
State  V.  Hockenbery,  334. 
State  V.  Kirkland,  454. 
State  V.  Lenares,  410. 


State  V.  Lipult,  316. 

State  V.  Lynott,  291. 

State  V.  Martin, '446. 

State  V.  McClure,  343. 

State  V.  McDonell,  297. 

State  V.  McDonnell,  452. 

State  V.  McNamara,  476. 

State  V.  Munco,  474. 

State  V.  Murph,  409. 

State  V.  Neville,  334. 

State  V.  Ott,  369. 

State  V.  Owen,  459. 

State  V.  Parker,  380. 

State  V.  Parker,  475. 

State  V.  Phinney,  332. 

State  V.  Pitts,  303. 

State  V.  Reed,  422. 

State  V.  Robbius,  298. 

State  17.  Rose,  395. 

State  V.  Schoenwald,  453,  474. 

State  V.  Scott,  294. 

State  V.  Simmons,  471. 

State  V.  Thompson,  484. 

State  V.  Turner,  289. 

State  V.  Vance,  360. 

State  V.  Waterman,  322. 

State  V.  Wilson,  331. 

State  to  use,  &c.  v.  King,  334. 

State  to  use,  &c.  v.  Smith,  339. 

Stebbins  v.  Miller,  484. 

Stephens  v.  Brooks,  441. 

Street  v.  Lynch,  319. 

Strohl  V.  Levan,  480. 

Stucke  V.  R.  R.  297. 

Swaggerty  v.  Caton,  336. 

Sweeney  v.  Easter,  348. 


T. 

Tenbrook  v.  Brown,  330. 
Thomas,  Exec'r,  v.  Thomas,  331. 
Thomas  v.  Ingram,  414. 


Part  III.] 


TABLE   OP   CASES. 


739 


Thomas  V.  State,  306. 
Thompson  V.  Force,  358. 
Thompson  v.  Paige,  396. 
Thompson  v.  State,  405. 
Tipton  V.  Triplett,  296. 
Trask  v.  Payne,  408. 
Treat  v.  Lord,  303. 
Trustees,  &c.  v.  Hill,  334. 
Turbeville  v.  State,  473. 
Turner  v.  Loler,  383. 
Tush  V.  Newell,  364. 

U    &    "V. 

U.  S.  V.  Breitling,  379. 
Van  Buskirk  v.  Day,  329. 
Van  Vleet  v.  Olin,  489. 
Villareal  v.  State,  460. 

Wadsworth  v.  Warren,  482. 
Waldio  V.  Dall,  310,  476. 
Walker  v.  llerron,  480. 
Walker  v.  State,  430,  469,  470. 
Wallace  v.  Wren,  484. 
Walsh  V.  Frank,  397. 


Ward  V.  Churn,  369. 
Ward  V.  Henry,  415. 
Warner  v.  Dunnavan,  329,  371. 
Washington  v.  State,  452. 
Watkins  v.  Wallace,  368. 
Weber  v.  Kingsland,  398,  439, 
Welch  V.  Watts,  304. 
Wells  V.  Prince,  324. 
Wharton  v.  Littlefield,  344. 
Whitcomb  v.  Fairlee,  372. 
White  V.  Walker,  427. 
White,  Adm'r,  v.  Gray,  353. 
Whitman  v.  R.  R.  437. 
Whitner  v.  Hamlin,  382. 
Whitney  v.  Goin,  391. 
Whitney  v.  Inhab.  324. 
Whittaker  v.  Perry,  298. 
Whitten  v.  State,  462. 
Widner  v.  State,  315. 
Wilcox  V.  State,  367. 
Williams  v.  Birch,  302. 
Williams  v.  State,  301. 
Williams  V.  Wood,  307,  419. 
Willis  ;;.  Bullitt,  417. 
Wisner  V.  Davenport,  289. 
Wood  V.  Chambers,  487. 
Wright  V.  State,  454. 
Wright  V.  Carillo,  483. 


I>.AIIT     III. 


Abbott  V.  Marshall,  550. 
Abbott  V.  Stirblen,  604. 
Adams  v  Ellis,  629,  657. 
Agee  V.  Medlock,  522. 
Albaugh  V.James,  640. 
Alexander  v.  Carew,  541, 


Allen  V.  Hall,  634. 
Allen  V.  Hard,  665. 
Allen  V.  Smith,  499. 
Allen  V.  Way,  506. 
Allsup  V.  Hassett,  652. 
Ammerman  v.  Crosby,  629. 
Andress  v.  Broughton,  521. 
Armstrong  v.  Clark,  532. 


(40 


T.'LBLE    OF   CASES. 


[Part  III. 


Ashley  v.  Root,  661, 
Atlas  Mining  Co.  v.  Johnston, 
642. 

B. 

Badger  v.  Bank,  546. 
Bailey  v.  Campbell,  604. 
Baker  v.  Simmons,  624. 
Banchor  v.  Mansell,  549. 
Bank  v.  Bank,  557. 
Bank  v.  Harvey,  615. 
Bank  v.  Stevens,  569. 
Banks  v.  Commissioners,  593. 
Bargiss  v.  Farrar,  614,  640. 
Barksdale  v.  Brown,  629. 
Bartee  v.  James,  615. 
Bartlett  v.  Wood,  530. 
Bartol  V.  Stanwood,  622. 
Bartolett  v.  Dixon,  638. 
Basam  v.  Parrish,  649. 
Batchelder  v.  Batchelder,  68t, 

598. 
Batchelder  v.  Tenney,  666. 
Beach  v.  Packard,  519. 
Beatty  v.  Sylvester,  598. 
Beeman  v.  Lawton,  603. 
Bell's  Adm'r  v.  Andrews,  524. 
Bender  v.  State,  ex  rel.  612. 
Bennett  v.  Clemence,  544,  571. 
Berry  v.  Hale,  504. 
Berry  v.  R.  R.  643. 
Bickford  v.  Gibbs,  542. 
Binnard  v.  Spring,  570. 
Black  V.  Hickey,  626. 
Blake  v.  Everett,  571. 
Blankenship  v.  R.  R.  566. 
Bligh  V.  James,  542. 
Bliss  V.  Shunam,  598. 
Bliss  V.  Stevens,  646. 
Bloss  V.  Kitridge,  580. 
Boston  V.  Morris,  630. 
Boston  City  v.  Robbins,  577. 


Bonrne  v.  Merritt,  631. 
Bowen  v.  Lazaler^^,  655. 
Bower  v.  Cook,  584. 
Bradt  v.  Gray,  502. 
Brady  v.  Furlow,  588. 
Brant  v.  Salisbury,  566. 
Brewington  v.  Patton,  563. 
Briggs  V.  Rafferty,  547. 
Brigham  v.  Wentworth,  546. 
Brintnall  v.  R.  R.  546. 
Brockenbrough  v.  Dresser,  616^ 

651. 
Brooke  v.  Young,  529. 
Brooks  V.  Bruyn,  662. 
Brooks  V.  Christopher,  626. 
Brooks  V.  Goss,  537,  597. 
Brown  v.  Bissell,  659. 
Brown  v.  Ilapp,  648. 
Brown  v.  Waterman,  541. 
Bryant  r. Hutchinson,  524. 
Bryant  v.  State,  643. 
Bryant  v.  R.  R.  537. 
Buck  u.  Squiers,  632. 
Buckmaster  v.  Cool,  612. 
BuUard  v.  Lambert,  597. 
Bullock  V.  Hayward,  542. 
Bunce  v.  Fairbanks,  571. 
Burdick  v.  Hunt,  496. 
Burghardt  v.  Van  Deusen,  574. 
Burleson  u.  Hancock,  564. 
Burnett  v.  Smith,  542. 
Burline  v.  State,  647. 
Burton  v.  March,  604. 
Busby  V.  Finn,  637. 
Bush  V.  Denhani,  647. 
Bush  V.  Yeoman,  577. 
Byrne  v.  Cummings,  494. 


c. 

Caldwell  v.  Parks,  643. 
Camp  V.  Mayer,  627. 


Tart  III.] 


TABLE    OF   CASES. 


741 


Campbell,  Adm'x,  v.  Montgom- 
ery, 516. 

Campbell  V.  Dutch,  629. 

Carey  v.  Giles,  614,  615. 

Carey  v.  McDougald,  633. 

Carey  v.  Rice,  558. 

Carlton  v.  Pierce,  569. 

Carmichael  V.  Brooks'  Adm'r, 
505. 

Carolan  v.  Jeflferson,  528. 

Carter  v.  Snyder,  527. 

Case  V.  Fogg,  564. 

Cato  (a  slave)  v.  State,  547. 

Chamberlain  v.  Porter,  547. 

Chamberlain  v.  Whitford,  549. 

Chapel  V.  Washburn,  612. 

Charter  v.  Chandton,  619. 

Cheatham  v.  Riddle,  554. 

Church  V.  Drummond,  608. 

Church  V.  Rowell,  584. 

City  of  Boston  v.  Benson,  580. 

City  of  Leavenworth  v.  Mills,  493. 

City  of  Springfield  v.  Sleeper, 
&c.  576. 

Claggett  V.  Gray,  645. 

Claggett  V.  Simes,  666. 

Clark  V.  Brown,  506. 

Clark  V.  Hall,  581. 

Clark  V.  Parvin,  655. 

Cleghorn  v.  Love,  562. 

Cleveland  v.  Stein,  642. 

Cluck  V.  State,  662. 

Cobb  V.  Kurtz,  562,  660. 

Codman  v.  Armstrong,  519. 

Codman  v.  Strout,  502. 

Colegrove  V.  R.  R.  587. 

Coleman  v.  R.  R.  513. 

Commissioners  v.  Spofibrd,  591. 

Commonw.  v.  Austin,  575. 

Commonw.  v.  Baile}--,  565. 

Commonw.  v.  Barry,  528. 

Commonw.  v.  Blake,  569, 

Commonw.  v.  Bosworth,  603. 


Commonw.  v.  Byce,  575. 
Commonw.  v.  Carey,  535. 
Commonw.  v.  Castles,  600, 
Commonw,  v.  Cummings,  510. 
Commonw.  v.  Doty,  630. 
Commonw.  v.  Dower,  604. 
Commonw.  v.  Dower,  595. 
Commonw.  v.  Downer,  573. 
Commonw.  z;.  Gale,  586. 
Commonw.  v.  Gill,  586. 
Commonw.  v.  Hall,  598. 
Commonw.  v.  Hills,  593. 
Commonw,  v.  Lincoln,  512. 
Commonw.  v.  Lockwood,  666. 
Commonw.  v.  Marks,  575. 
Commonw.  v.  Marshall,  654,  657. 
Commonw.  v.  McCready,  639. 
Commonw.  v.  Morris,  546. 
Commonw.  v.  Mullins,  601. 
Commonw.  v.  Paulus,  565. 
Commonw.  v.  Peck,  581. 
Commonw.  v.  Putnam,  518. 
Commonw.  v.  Robinson,  570. 
Commonw.  v.  Sallen,  565. 
Commonw.  v.  Savory,  573. 
Commonw.  v.  Stevens,  498. 
Commonw.  v.  Thrasher,  589. 
Commonw.  v.  Thornton,  658. 
Commonw.  v.  Tuttle,  606. 
Commonw.  v.  Whalen,  605. 
Comstock  V.  Smith,  608, 
Conillard  V.  Duncan,  550. 
Conover  v.  Ins.  Co.  570. 
Conrow  v.  Schloss,  657. 
Consaul  V.  Sidell,  649. 
Cook  V.  Bank,  624. 
Cook  V.  Castner,  618. 
Coombs  V.  Cordage  Co.  585. 
Copeland  v.  Copeland,  536. 
Corey  v.  Janes,  594. 
Corley's  Exec'r  v.  Evans,  638, 
Cotton  V.  Bradley,  564. 
Courser  v.  R.  R.  591. 


742 


TABLE    OF   CASES. 


[Pakt  III. 


Cowperthwaite  v.  Sheffield,  651. 
Cox  V.  Garvin,  519. 
Cox  V.  Jackson,  580. 
Craig  V.  Andrews,  656. 
Cram's  Adm'r  v.  Cram,  523. 
Cravens  v.  Dewey,  629. 
Crawford  v.  Wilson,  602. 
Cressinger  v.  Lessee,  618. 
Crittetiden  v.  Field,  589,  599. 
Crofoot  V.  People, 
Cronk  v.  Canfield,  555. 
Crosby  v.  Harrison,  567. 
Croswell  v.  Byrnes,  657. 
Culbertson  v.  City  of  Galena,  534. 
Cumniings  v.  Smith,  572. 
Cunningham  v.  Bell,  511. 
dishing  V.  Billings,  572, 
Curl  V.  Lowell,  602. 
Cutler  V.  Ilurlburt,  531. 
Cutler  V.  Welsh,  546. 


Dace  V.  Oppenheim,  635. 
Daggett  V.  Chase,  565. 
Dailey  v.  Fountain,  525. 
Daniels  v.  W^inslow,  645. 
Darlington  v.  Warner,  635. 
Davenport  v.  Holland,  625. 
Davidson  v.  Street,  501. 
Davis  V.  Baldwin,  625. 
Davis  V.  Jenney,  602,  606. 
Davis  V.  Meyers,  659. 
Davis  V.  Millandon,  547. 
Davis  V.  State,  534. 
Davis  V.  Strohm,  622. 
Day  V.  Raguet,  619. 
Dean  v.  Gridley,  498. 
Decker  v.  McManus,  584. 
De  Haven  v.  De  Haven,  641. 
Demerritt  v.  Randall,  574. 
Denny  v.  Ins.  Co.  551. 


Dent  V.  Davison,  642. 
Diepenbroek  v.  Shaw,  643. 
Dillard  V.  Parker,  611. 
Dillon  V.  Roe,  515. 
Docks,  &c.  V.  Ponhallow,  647. 
Doe  V.  Gildart,  502. 
Doe  V.  Peeples,  500. 
Doe  V.  Spraggins,  592. 
Dole  V.  Johnson,  600. 
Donncll  v.  Jones,  520. 
Downing  v.  Shacklett,  663. 
Doyle  V.  Dixon,  577. 
Drew  V.  Beale,  616. 
Dufield  V.  Cross,  520. 
Duggins  V.  Watson,  534. 
Dunlap  V.  Monroe,  497. 
Dunn  V.  State,  639. 
Duvall's  Exec'r  v.  Dailey,  645. 
Dye  V.  Mattox,  659. 
Dyer  v.  Greene,  602. 


E. 

Earl  of  Glasgow  v.  Alum  Co.  657. 
Eaton  V.  Houghton,  529. 
Eaton  IK  Lyman,  531. 
Edwards  v.  Hopkins,  568. 
Ellicott  V.  Martin,  651. 
Elliott  V.  Lyman,  597. 
Elliott  V  Woodward,  556. 
Ellis  V.  Warren,  515,  636. 
Elton  V.  Markham,  554. 
Elwell  V.  Dizer,  644,  654. 
Emerson  v.  Delamater,  621. 
Emerson  v.  Hogg,  548. 
Emerson  v.  Young,  592. 
Emery  v.  Vinall,  541. 
Estabrook  v.  Messersmith,  646. 
Esty  V.  Wiimot,  633. 
Etter  V.  Armstrong,  495. 
Evans  v.  Fisher,  641. 
Evans  V.  Lohr,  620. 


Pabt  III.] 


TABLE   OF   CASES. 


743 


Everett  V.  Clements,  519. 
Ex  parte  Crane,  555. 


Falkerson  v.  Houts,  650. 
Farrar  v.  Finney,  514,  643. 
Fash  v.  Clark,  617. 
Fay  V.  Breckenridge,  667. 
Fellows  V.  Tait,  649. 
Fenuow  v.  R.  R.  658. 
Ferris  v.  McClure,  651. 
Fiuley  v.  Quirk,  583. 
Fish  V.  Field,  665. 
Fisher  v.  Allison,  540,  616. 
Fitzainder  v.  State,  639. 
Flanders  v.  Davis,  599. 
Flatter  v.  McDermott,  554. 
Fletcher  u.  Clark,  594. 
Foot  V.  Sabin,  495. 
Foote  V.  Foote,  604. 
Forkner  v.  Stuart,  613. 
Forsyth  v.  Matthews,  613. 
Foster  v.  Hightower,  652. 
Fowler  v.  Commissioners,  599. 
Fowler  v.  Commonw.  500. 
Frank  v.  State,  628. 
Freeman  v.  Griggs,  654. 
Freeman  v.  People,  593. 
Freher  u.  Geeseka,  563. 
French  v.  White,  554. 
Frier  v.  Jackson,  495. 
Frost  V.  Bates,  605. 
Fry  V.  Bennett,  582. 
Fuller  V.  Ruby,  536. 
Furlow's  Adm'r  v.  Merrill,  521. 


a. 

Gaddy  v.  McCleane,  624. 
Gaines  v.  Wiggs,  515. 


Gallagher  v.  Brandt,  611. 
Gamble  v.  Woods,  589. 
Gano  V.  Samuel,  622. 
Gardner  v..  Gardner,  693. 
Gardner  v.  Gooch,  604. 
Garland  v.  Davis,  539. 
Garlington  v.  Jones,  654. 
Garner  v.  Keaton,  659. 
Garner  v.  White,  616. 
Gas  Co.  V.  Bean,  579. 
Gas  Co.  V.  Graham,  615. 
Gas  Co.  V.  Green,  059. 
Gassett  v.  Cottle,  666. 
Gay  V.  Peacock,  661. 
General  Rule,  565. 
Generes  V.  Campbell,  650. 
George      v.      School      District, 

640. 
Germann  v.  Schwartz,  663. 
Gerrish  v.  Manuf.  Co.  618. 
Gibbons  v.  Johnson,  636. 
Gibson  v.  Land,  515. 
Gilman  v.  Theiss,  560. 
Gilmanton  v.  Hann,  515. 
Gist's  Adm'r  v.  Cockey,  503. 
Glaggett  V.  Gray,  633. 
Goodgame  V.  Clifton,  519. 
Goodnow  V.  Davenport,  590. 
Goodrick  v.  Downs,  500. 
Goodwin  v.  Perkins,  560. 
Gould  V.  House,  624. 
Granger  v.  Warrington,  580. 
Graves  v.  Ins.  Co.  544. 
Gray  v.  Stiver,  587. 
Gray  v.  Thomas,  530. 
Grazidal  v.  Bastauchure,  625. 
Green  v.  Castlebury,  627. 
Greenleafv.  Hill,  666. 
Greenleaf  v.  R.  R.  576. 
Greenleaf's    Lessee    v.    Birth, 

536. 
Greenway  v.  Graither,  644. 
Gregory  v.  Gleed,  546. 


744 


TABLE   OF   CASES. 


[Paet  IU. 


Haas  V.  Harrington,  591. 
Hairston  v.  Cole,  529. 
Hale  V.  Haselton,  650. 
Hamilton  v.  Bruch,  662. 
Hanson     v.    Buckner's    Exec'r, 

543. 
Haraszthy  v.  Horton,  497. 
Harding  v.  Handy,  626. 
Harlow  v.  Humiston,  645. 
Harmon  v.  Chandler,  563. 
Harmon  v.  Harmon,  594. 
Harrington  17.  Merri weather,  659. 
Harris  v.  State,  658. 
Harrison  v.  Bartlett,  561. 
Hart  V.  Holden,  549. 
Harting  v.  People,  659. 
Harvey  v.  Reeds,  577. 
Hatch  V.  Potter,  504. 
Haverhill  Loan,   &c.   v.  Cronin, 

550. 
Hayes  v.  Kelley,  574. 
Hefison  v.  State,  628. 
Hersleb  v.  Moss,  561. 
Hervey  v.  Nourse,  617. 
Hicks  V.  Coleman,  560. 
Hildreth  v.  Martin,  552. 
Hinde's    Lessee  v.  Longworth, 

497. 
Hixon  V.  Weaver,  655. 
Hoar  V.  Goulding,  591. 
Hobson  V  Kissam,  658. 
Hockler's  H^irs  V.  Cabel,  495. 
Hodge's  Exec'r  v.  Bank,  663. 
Hodgkins  v.  Pearson,  595. 
HoflTman  V.  Harrington,  526. 
Hopkins  v.  Turnpike  Co.  505. 
Horn  V.  New,  496. 
Horton  v.  Wead,  569. 
Houghton  V.  Slack,  578. 
Houston  D.  Jones,  655. 
Howard  v.  Hay  ward,  551. 


Howard  v.  Town  of  Burlington, 

644. 
Howe  V.  Newmarch,  620. 
Howland  v.  Willetts,  554. 
Hubbell  V.  Weldon,  560. 
Hubbell  V.  Bissell,  601. 
Hunting  V.  People,  579. 
Huntress  v.  Tiney,  570. 
Huntsman  v.  Nicholls,  574. 
Huston  V.  Hayter,  625. 
Hutchinson  v.  Gurley,  545. 
Hutchinson  v.  Inhab.,  &c.  672. 


I. 

Ingraham  v.  Gildermester,  505. 
Ingram  v.  Smith,  552,  563. 
In  re  Cooper,  630. 
Insurance  Co.  v.  Buffum,  601. 
Insurance  Co.  v.  Chapman,  599. 
Insurance  Co.  v.  Johnson,  651. 
Insurance  Co.  v.  Minard,  536. 
Insurance  Co.  v.  Pratt,  496. 
Iron  Works  v.  Woodruff,  571. 
Irwin  V.  Riddlesburgher,  582. 
Ives  V.  Bank,  590. 
Ivey  V.  Coleman,  611,  618. 


J. 

Jackman  v.  Bowker,  621. 
Jacks  V.  Buell,  629. 
Jackson  v.  Cadwell,  495. 
Jackson  v.  Varick,  500. 
Jahr  V.  People,  578. 
Jameson  v.  Moon,  493. 
Jeffries  V.  Commonw.  585. 
Jenks  V.  State,  556. 
Johnson  v.  Couillard,  661. 
Johnson's    Exec'r   v,  Jennings' 
Adm'r,  533. 


Pakt  III.] 


TABLE   OF   CASES. 


m 


Jones  V.  Sisson,  542. 
Jones  V.  Wolcott,  542. 
Jones  V.  Eoot,  575. 
Jones  V,  Bridge,  556. 
Jones  V.  Graham,  603. 
Jones  V.  Keen,  626, 
Jones  V.  Payne,  657 . 


K. 

Keithler  v.  State,  622. 
Kelley  v.  Hendul.  603. 
Kelley  v.  Riley,  648. 
Kelly  V.  Union  County,  612. 
Kendall  v.  Weaver,  572,  675. 
Kennedy  v.  Merry,  638. 
Kennedy  v.  Waugh,  589. 
Kent  V.  Tyson,  590. 
Kent  V.  Willey,  615. 
Kershaw  v.  Wright,  537. 
Kettle  V.  Foote,  592. 
Kilgore  v.  Bowie,  634. 
Kimball  v.  Gearhart,  582. 
Kingwood  v.  Bethlehem, 
Kirkpatrick  v.  Tex,  645. 
Kirsej'  v.  Hard  away,  612. 
Kitchen  v.  Moye,  647. 
Kline  v.  Winn,  579. 
Knapp  V.  Schneider,  607. 
Knox  V.  Webster,  557. 


Lane  v.  Kingsbury,  635. 
Lane  v.  Robinson,  656. 
Lane  v.  Taylor,  624. 
Lathrop  V.  Arnold,  626. 
Lathrop  V.  Page,  635. 
Law  V.  Jackson,  507. 
Law  V.  Merrills,  495,  501,  573. 
Lawrence  v.  Chase,  561. 


Leathe  v.  Bullard,  544. 
Lee  V.  Oppenheimer,  543. 
Leslie    V.    Langham's    Exec'rs, 

510. 
Lessee  v.  Bank  of  Indiana,  632. 
Levi  V.  R.  R.  541. 
Liggett  V.  Bank,  516. 
Lincoln  v.  Claflin,  555. 
Linn  v.  Hoag,  609. 
Lively  v.  Ballard,  619. 
Livingston  v.  Radcliff,  506. 
Lombard  V.  Cheever,  516. 
Looney  v.  Looney,  571. 
Lord  V.  Inhab.,  &c.  537. 
Loud  V.  Pierce,  602. 
Lowe  V.  Pimental,  574. 
Ludlow  V.  Gilman,  553. 
Lyman  v.  Burlington,  591. 
Lyman  v.  Tarbell,  623. 
Lyme  v.  East  Haddam,  494. 
Lyon  V.  Boilvin,  664. 


M. 

Maghee  v.  Baker,  647. 
Makepeace  v.  Davis,  610,  581. 
Mann  v.  Glover,  517. 
Manning  v.  Gasharie,  660. 
Mansfield  v.  Corbin,  565. 
Marble  v.  Keyes,  573. 
Marshall  v.  Merritt,  565. 
Marshall  v.  Oakes,  621. 
Martin     V.    Improvement   Co. 

603. 
Masseaux  v.  Brigham,  667. 
Maulding  v.  Rigby,  604. 
May  V.  Lewis,  612. 
Mayberry  v.  Morse,  602. 
Mayhew  v.  Soper,  593. 
Mays  V.  Deaver,  645,  650. 
McCaleb  v.  Smith,  555. 
McCann  v.  Hallock,  623. 


746 


TABLE    OF   CASES. 


[Part  III. 


McCaskey  V.  Graif,  534. 
McCauen  v.  McNulty,  661. 
McCluro  V.  Pursell,  627. 
McClure  V.  K   R.  648. 
McCreery  v.  Everding,  618. 
McCuUagh  V.  Allen,  580. 
McDougall  V.  Shirley,  606. 
McElfatvick  v.  Caflrath,  639. 
McGavock  v.  Puryear,  639. 
McGray  v.  Wheeler,  568. 
McNorton  v.  Akers,  666. 
McLoon  V.  Spalding,  537. 
Meddler  v.  State,  ex  rel.  628. 
Meed  v.  McGraw,  585, 
Meese  v.  Levis,  515. 
Memsir  v.  Crosby,  568. 
Merrett  v.  Vance,  625. 
Mershon  v.  Ins.  Co.  556. 
Milk  V.  11.  R.  620. 
Miller  v.  Burger,  649. 
Miller  v.  Dupuy,  630. 
Millett  V.  Marston,  538. 
Milvehal  v.  Milward,  650. 
Moodey  v.  Hinkley,  571. 
Moody  V.  Inhab.,  &c.  603. 
Moody  V.  Nichol,  494. 
Moody  V.  Sabin,  597. 
Moore  v.  Appleton,  650. 
Moore  v.  Ayres,  581. 
Moore  v.  Ferrell,  630. 
Moore  v.  Quirk,  657. 
Moran  v  Dawes,  500. 
More  V.  Delvalle,  638. 
Morton  v.  Bailey,  588. 
Moulton  V.  Jose,  578. 
Mudget  V.  Kent,  588. 
Mullen  V.  Kavanaugh,  600, 
Munap  V.  Bank,  635. 
Murdock   v.  Herndon's  Exec'r, 

496. 
Murray  v.  Fry,  620. 
Murphy  v.  Lucas,  656. 
Myers  v.  Segars,  648, 


ISF. 

Nash  V.  Shrader,  523. 

Natoma  Water,  &c.  v.  Clarkin, 

513. 
Neece  v.  Haley,  642. 
Negley  v.  Wilson,  649. 
Nelson  v.  Dodge,  576. 
Nesbitt  V.  Dallam,  625. 
Newlin  v.  Lyon,  561. 
Newsum  v.  Newsum,  499, 
Nichols  V.  Munsel,  576. 
Nixon  V.  Hammond,  604. 
Noble  V.  Thompson,  640, 
Nolton  V.  Moses,  596. 
Norton  v.  Kidder,  604, 


o. 

Oakley  v.  Aspinwall,  506. 
O'Brien  v.  Barry,  599. 
O'Connor  v.  Hallinam,  585. 
O'Hare  v.  People,  633. 
Ohio,  ex  rel.,  v.  Wood,  60T. 
Oleson  V.  State,  641. 
Oliver  v.  Moore,  537. 
Oliver  v.  Pate,  640. 
Oliver  v.  Town,  646,  650. 
Orton  V.  Noonan,  503,  658, 
Osborne  v.  Tunis,  660. 
Oswald  V.  Kennedy,  601. 
Oxnard  v.  Swanton,  603,  621. 


Packard  v.  Clapp,  549. 
Packer  v.  Lockman,  558. 
Packet  Co.  v.  Sickles,  664. 
Page  V.  O'Brien,  612. 
Paine  v.  McClain,  514. 
Parker  v.  Flagg,  540, 


Part  III.] 


TABLE    OF    CASES. 


747 


Parks  V.  City  of  Boston,  622. 
Parshall  v.  Moody,  630. 
Pasley  v.  English,  613. 
Parsons  v.  Evans,  634. 
Paston  V.  Exec'r,  632. 
Patterson  v.  U.  S.  539. 
Patton  V.  Ilayter,  520. 
Peai*son  v.  Grice,  659. 
Peck  V.  Thompson,  545. 
Pecquet!  v.   Pecquett's  Exec'r, 

496. 
Pellagj  V.  Pellage,  641. 
People  V.  Ah  Fat,  643. 
People  V.  Ashnaer,  624. 
People  V.  Colt,  570. 
People  V.  Lee,  644. 
People  V.  Littlejohn,  642. 
People  V.  Martin,  492. 
People  V.  Reagle,  586. 
People  V.  Royal,  510. 
People  V.  Torrs,  583. 
People  V.  Weaver,  625. 
People,  ex  rel.,  v.  Brown,  516. 
People,  ex  rel.  Crane,  v.  Judge, 

656. 
Perkins'     Adm'r    v.    Hawkins' 

Adm'r,  665. 
Permiuter  v.  Kelley,  520. 
Perry  v.  Higgs,  645. 
Pettis  V.  Campbell,  633. 
Phelps  V.  Conant, 
Phillips  V.  Hoyle,  597,  654,  657. 
Phillips  V.  Soule,  644. 
Pickering  v.  Reynolds,  670. 
Pickett  V.  Allen,  499. 
Pickett  V.  Doe,  505. 
Polhemus  v   Bank,  662. 
Polinan  v.  Phelps,  530. 
Pomeroy's  Lessee  v.  State  Bank, 

549,  578,  637. 
Pomroy  v.  Preston,  657. 
Porter  v.  Porter,  493. 
Poultney  v.  Glover,  531. 


Powell  V.  State,  521 . 
Powers  V.  Bridges,  618. 
Powers  V.  Sawyer,  584. 
Pratt  V.  Foote,  554. 
Preble  v.  Reed,  500. 
Prescott  V.  Hayes,  511. 
Priest  V.  Wheeler,  5()9. 
Purrington  v.  Pierce,  546. 
Putnam  v.  Button,  499 


Q. 

Quigley  v.  Campbell,  503. 


Ragland  v.  Bainger,  666. 
Raines  v.  Phillips,  529. 
Randall  v.  Doune,  598. 
Randolph  v.  Eraerick,  497. 
Randon  v.  Toby,  590. 
Rankin  v.  Butler,  614. 
Rathboner  v.  State,  641. 
Rawls  V.  State..  656 
Ray  V.  Lipscomb,  604. 
Ray  V.  Smith,  573. 
Rayner  v.  Timerson,  621. 
Reed  v.  Anderson,  573. 
Reed  y;.  Spaulding,  511. 
Reeves  v.  Plough,  629. 
Reid  V.  Spencer,  609. 
Reynolds  v.  R.  R.  556. 
Rich  V.  Jones,  574. 
Richardson  v.  Curtis,  626. 
Richmond  V-  Whittlesey,  570. 
Riddlesbarger  v.McDaniells,  651 
Riker  v.  Scofield,  648. 
Roberts  v.  Summers,  627. 
Robinson  v.  L'Engle,  495,  650. 
Robinson  v.  R.  R.  555. 
Roosevelt  v.  Heirs,  500. 


748 


TABLE   or   CASES. 


[Part  III. 


Root  V.  King-,  508. 

Rosebaum  V.  McThomas,  509. 

R.  R.  V.  Bowen,  614. 

R.  R.  V.  Clark,  576. 

R.  R.  V.  Graham,  495, 

R.  R.  V.  Graham,  616. 

R.  R.  V.  Griffin,  505. 

R.  R.  V.  Irish,  277. 

R.  R.  V.  Kay,  692. 

R.  R.  V.  Newton,  542. 

R.  R.  V.  Palmer,  642. 

R.  R.  V.  R.  R.  630. 

R.  R.  V.  Shorter,  658. 

R.  R.  V.  Simpson,  664. 

Rugg  V.  Towner,  613. 

Ruble  V.  Thomassen,  643. 

Rupert  V.  Elston's  Exec'r,  527. 

Rutherford  v.  Pope,  664. 

Ryan  v.  Burham,  501. 


Sackett  v.  McCord,  626,  636. 
Sadler  v.  Anderson,  531. 
Sales  V.  Pratt,  507. 
Samniis  v.  Johnson,  621. 
Sampson  v.  R.  R.  548. 
Sanders  v.  Lay,  581. 
Sands  v.  Woods,  563. 
Sanford  v.  Lebanon,  659. 
Sanlbrd  v.  R.  R.  551. 
Sawyer  v.  Iron  Works,  566. 
Sawyer  v.  Iron  Works,  653,  664. 
Sawyer  v.  Phaley,  601. 
Sawyer  v.  Pratt,  605. 
Sawyers  v.  Lathrop,  516. 
Schenck  v.  Andrews,  553. 
Scruton  v.  Moulton,  576. 
Seay  v.  Treadwell,  659. 
Seccomb  v.  Ins.  Co.  513. 
Seibright  v.  State,  647. 
Selectmen  of  Ripley,  609, 


Sessions  v.  Reynolds,  532. 
Seward  v.  Jackson,  507. 
Sewell  V.  Eaton,  608. 
Seymour  v.  Slocum,  500. 
Sexton  V.  Willard,  566. 
Sharp  V.  Curtiss,  495. 
Shattuck  V.  Woods,  510. 
Shaw  V.  Mason,  647. 
Sheai;.  R.  R.  617. 
Shelton  v.  Hoadley,  494. 
Shepherd  v.  Rand,  634. 
Sherman  V.  Crothers,  640. 
Sherwood  v.  Houston,  580. 
Shore  V.  Taylor,  580. 
Shorter  v.  People,  535. 
Shotwell  V.  Ilamblin,  502. 
Sierer  v.  Martin,  658. 
Simpson  v.  Wilson,  593. 
Slack  V.  Town  of  Norwich,  584. 
Slater  v.  Rawson,  667. 
Smith  V.  Baugh,  650. 
Smith  V.  Boatrite,  659. 
Smith  V.  Collins,  602. 
Smith  V.  Coe,  685. 
Smith  V.  Garrett,  623. 
Smith  V.  Hurd,  634. 
Smith  V.  Lisher,  663. 
Smith  V.  Merrill,  573. 
Smith  V.  Mitchell,  565. 
Smith  V.  Moore,  541. 
Smith  V.  R.  R.  655. 
Snell  V.  Kimmell,  592,  638. 
Soule  V.  Austin,  577. 
Sowerwein  v.  Jones,  623. 
Sparks  v.  Maxwell,  669. 
Spaulding  v.  Alford,  498. 
Spaulding  v.  Spray,  564. 
Spencer  v.  Pilcher,  503. 
Spe3'er  v.  Stern,  608. 
Sprague  IK  Craig,  694. 
Squires  v.  Burgess,  587. 
St.  John  V.  Kidd,  633. 
St.  John  V.  Wallace,  655,  656. 


Part  III.] 


TABLE   OF   CASES. 


49 


Stainy  v.  Brown,  541. 
Stanley  v.  Webb,  594. 
State  V.  Bunger,  628. 
State  V.  Chandler,  545. 
State  /).  Clark,  632. 
State  V.  Dove,  628. 
State  V.  Goold,  638. 
State  V.  Hand,  510. 
State  V.  Hart.  647. 
State  V.  Herbert,  593. 
State  V.  Hinckley,  498. 
State  V.  Jenkins,  550. 
State  V.Jennings  for  use,  &C.630. 
State  V.  Jim,  608. 
State  V.  Mayberry,  583. 
State  V.  Murphy,'  603. 
Stat«  -".  Staley,  608. 
State  V.  Todd,  651. 
State  V.  Williams,  609. 
State,  ex  rel.,  v.  Gale,  641. 
State,  ex  rel.,  v.  Naggle,  637. 
State,  ex  rel.,  v.  Powers,  647. 
State  Bank  v.  Conway,  546. 
Steamboat  v.  Smith,  519. 
Stearns  v.  Bliss,  545. 
Stearns  v   Fisk,  592. 
Stephens  v.  Lawson,  543. 
Stephens  v.  State,  643. 
Stevens  v.  Plewitt,  623. 
Stevens  v.  State,  536. 
Stevenson  v.  Ins.  Co.  587. 
Stewart  v.  Rankin,  611. 
Stimpson  v.  R.  R.  617,  660. 
Stoddard  v.  Winsor,  573. 
Stone  IK  McKinney,  640. 
Street  V.  Bryan,  608. 
Streeter  v.  Evans,  598. 
Strohm  V.  R.  R.  564. 
Sturtevant  v.  Randall,  592. 
Swafiford  V.  Dovenor,  623. 
Swift  V.  Cassell,  616. 
Styles  V.  Gray,  662. 
Sylvester  v.  Mayo,  515. 


T 

Tapley  V.  Martin.  566. 
Taylor  V.  Flint,  664. 
Teas  V.  McDonald,  515. 
Tefft  V.  Windsor,  649,  650. 
Telegraph  Co.  v.  Hobson,  635, 

645. 
Tempo  V.  State,  619. 
Thayer  v.  Elliott,  667. 
Thomas  v.  Zushlay,  628. 
Thompson  v.  Cummings,  529. 
Thompson  v.  Drake,  524. 
Thompson  V.  White,  624. 
Thornton  v.  Blaisdcll,  587. 
Thorp  V.  State,  619. 
Tollinson  v.  Gunderson,  664. 
Tomlinson  v.  Wallace,  560. 
Town  of  Westford  v.  Town  of 

Essex,  524. 
Tragden  v.  Deckard,  497. 
Troy  Iron,  &c.  v.  Corning,  632, 
Tubeville  v.  State,  619. 
Tucker  V.  R.  R.  691. 
Turner  v.  Grand  Rapids,  643. 
Turner  v.  Patterson,  511. 
Tyler  v.  People,  613. 


u. 

Underwood  v.  Hossack,  642. 
U.  S.  V.  Burnham,  539,  605, 
U.  S.  V.  Gilbert,  611,  594. 
U.  S.  V.  Morgan,  666. 


Van  Amringe  v.  Barnett,  538. 
Van  Buren  v.  State,  655. 
Van  Gerden  v.  Jackson,  495. 
Vanness  v.  Bradley,  640. 


750 


TABLE    OF   CASES. 


[Part  III. 


Van  Valkcnburg'  v.  Rogers,  648. 
Varnnrn  v.  Taylor,  GH. 
Vernon  v.  East  Hartford,  622. 
Vilas  V.  Downer,  510. 
Vincent  v.  Rogers,  501. 
Vroman  v.  Dewey,  616,  661. 


Walker  v.  Blake,  603. 
Walker  v.  Lessee,  562. 
Walker  v.  Penniman,  546. 
Walker  v.  Stoddard,  656. 
Wall  V.  Provident,  &c.  542. 
Wallace  V.  Jerome,  588. 
Walton  V.  Smith,  665. 
Walton  V.  U.  S.  631. 
Ward  V.  Abbott,  599. 
Ware  v.  Ware,  572. 
Warner  v.  Campbell,  662. 
Warner  v.  Manski,  608. 
Waters  v.  Gilbert,  543. 
Watson  V.  Pierce,  581. 
Watson  V   Watson,  495. 
Weathers  v.  Doster,  559, 
Webster  v.  Calden,  536,  600. 
Welch  V.  People,  573. 
Wenst  V.  Schroeder,  492. 
Wentworth  v.  Leonard,  541. 
West  V.  Cunningham,  518. 
West  V.  Fowler,  643. 
West  V.  Lynn,  604. 
Whaley  v.  Gleason,  616. 
Wharf  Co.  v.  Prescott,  572. 
Wheeler  v.  Rice,  543. 


Wheeler  v.  Winn,  493,  633. 
Whicher   v.    McLaughlin,    634, 

613. 
White  V.  Mannf.  Co.  609. 
Whiteside  V.  Jackson,  498. 
Whitfield  V.  Westbrook,  629. 
Whitmore  v.  Coats,  652. 
Whitney  v.  Ins.  Co.  602. 
Whitten  v.  Graves,  587. 
Wiggs  V.  Kodntz,  640. 
Will  of  Bowman,  493. 
Williams  v.  Bowdon,  506. 
Williamson  v.  Suydam,  507. 
Wilson  V.  Abrams,  627. 
Wilson  V.  Van  Winkle,  549. 
Woodburn  V.  Cogdal,  540. 
Woodman  v.  Valentine,  588. 
Woollen  Co.  v.  Goodrick,  576. 
Wright  V.  Bank,  615. 
Wright  V.  Foster,  595. 
Wyeth  V.  Richardson,  577. 
Wyman  v.  Wood,  503. 
Wynham  v.  People,  507. 


Young  V.  State,  638. 
Yule  V.  Ely,  646. 


z. 

Zabriskie  V.  Smith,  638. 
Zimmerman  v.  Turner,  564, 
Zipper  V.  Commonw.  563. 


INDEX. 


A. 


AT^ANDONMENT  of  contract,     . 

of  contract  of  service,  .         . 

of  homestead  or  possession, 

of  land  claim,        ..... 

of  vessel  under  insurance,     . 

of  course  and  distance  in  boundaries, 

by  lapse  of  time,  .... 

ABSOLUTE  conveyance,  whether  mortgage, 

or  conditional  gift,         .... 

or  conditional  sale,      .  ... 

or  positive  negligence, 
ABSTRACT  remarks  of  judge,       . 

and  inapplicable  instructions, 
ACCEPTANCE  of  part-performance,  waiver  by, 

of  deed,        

of  dedication,  by  municipality, 

of  delivery, 

of  defective  labor  under  contract, 

of  delivery  of  baggage  by  railroad, 

of  work,        ...... 

of  note  of  third  person  as  payment,  whether 
puisory  or  not,           .... 
ACCEPTED  order,  indefinite  time  of  payment  in, 
ACCEPTING  trust  in  bankruptcy  ;  time, 
ACCIDENTS;    negligence 

instruction, 

ACCOMMODATION  indorsement  by  corporation 
ACCOMPLICE,  testimony  of,         .        .        . 
ACCOUNT,  payment  of,  by  promissory  note, 

assignment  of,  in  satisfaction, 

embraced  in  settlement, 
ACKNOWLEDGMENT  of  mortgage, 
ACQUIESCENCE  of  landlord  in  tenant  holding  over, 
ACTION,  nature  of,  for  the  court,   . 

for  damages  ;  compromise,  .         .         . 

on  contract,  form  of,      . 

identity  of, 


PAGB 

87 
110 
100 


209 

146 

101 

60 

107 

107 

226 

325, 606 

379-400 

.     Ill 

.     152 

.     157 

.     175 

.     178 

.     178 

.     263 


.  187 
.  139 
.  136 
.  226 
478,  480 
.  180 
.  279 
.  183 
.  185 
.  104 
.     149 

159 
9 

190 
86 

121 


SECTIOK 

88 
123 
TOl 
608 
248 
152 
101 
57 
115 
118 
264 
367,818 
438-465 
124 
155 
163 
194 
201 
202 
295 

221 
151 
151 
263 
593, 595 
208 
326 
217 
217 
110 

154 
166 
1 
229 
86 
135 


751 


752 


rtn)Ex. 


PAGE  SECTION 

ADDITION  to  a  will;  fraudulent,  .-.•..•         .250  286 

or  alteration,  whether  change  in  a  building  is,       .     127  144 

to  a  city,  whether  according  to  plat,      .         .         .     148  152 

ADDITIONAL  INSTRUCTIONS,  after  jury  retires,    .     335  380 

on  amendment,     ...                  ...     337  383 

right  of  prisoner  to  aalv,        .                  ...     338  386 

ADMINISTRATION;  waiver  of  copy  of  claim,     .         .111  124 

time  of  taking  out  letters, 136  151 

character  of  letters,       ......       62  61 

ADMINISTRATOR  ;  liability  for  use  and  occupation,  .     165  170 

sale  of  real  estate, 154  157 

ADMISSIBILITY  of  evidence,     ...        27,  278, 424     27,  325.  499 

of  dying  declarations, 282  328 

See  Evidence  and  Instructions. 

ADMISSION   or  offer  to   compromise,  whether  state- 
ment is,    107  116 

of  wrong  evidence ;   when  it  will  not  reverse,         .     344  396 
of  wrong  evidence  not  cured  by  instruction,       277,  344           324,  395 

ADULTERATION  under  warranty,        ....     127  143 

ADVERSE   OPINION   of  judge  as  to  the  policy  of 

the  law,  expression  of, 292  341 

ADVERSE  POSSESSION,  ....      166,  169  174, 179 

intention  of, 102  104 

instruction  on,          ....     488  608 

or  permissive  right  of  way, 169  177 

AGENCY  implied  in  behalf  of  insane  person,        .         .     130  146 

AGENT,  relation  and  authority  of,          ...      128,  129  146 

of  surety, 130  146 

reasonable  efforts  of,  to  effect  sales,       .         .         .     173  191 

insurance,  authority  of, 205  240 

insurance  against  criminal  conduct  of,           .         .     207  245 

whether  warehouseman  is, 129  146 

AGGRAVATION  and  mitigation  in  slander  ...      78  80 

in  trespass, 27 1  309 

AGREEMENT  of  jury  urged  by  judge,         .        .        .299  348 

to  try  criminal  case  without  jury,  not  allowed,      .       50  38 

(written)  as  collateral  evidence,     ....       83  85 

composition;  waiver  of  rights  under,    .         .         .     112  124 

for  performing  voyage ;  time,        ....     136  151 

to  discharge  indorser, 182  212 

to  extend  time  of  payment, 186  220 

rescinding  of, 85  86 

AGRICULTURAL  SOCIETY;   negligence,          .        .    227  264 

ALIBI,  instructions  concerning, 409  568 

ALIENATION,  prohibition  of,  in  insurance  policy,         .     202  234 

ALTERATION  of  instruments 126  141 

of  indictments, 127  142 

of  depositions 127  142 

indeed 149  154 

of  promissory  note, 179  205 


INDEX.  '?^53 

PAGE  SECTIOTT 

AMBIGUITY 29,56  29,47 

in  a  will, 60  59 

(latent),  in  deed, 150  155 

in  promissory  note, 190  230 

in  instructions, 372,373  428,429 

AMEKDING  verdict  by  court, 11  3 

"  AMICABLE  COMPOUNDERS,"  jury  not,       .        .    284  332 

ANCILLARY  INSTRUCTIONS,          .        .        .        .477  591 

ANIMALS,  diimaged  by  negligence,       .        .        .        .229  265 

trespassing  ;  reasonable  time  for  taking  out,        .     141  151 

cause  of  death, 272  309 

ANTAGO^^ISTIC  INSTRUCTIONS 375  435 

APPEAL  CASE  from  J.  P.  to  common  pleas  court,  ex- 
ceptions in, 630  866 

APPELLATE  COURTS.    -See  Practice. 

APPLICATION  for  insurance,       .....     205  240 

of  the  law,  instructions  must  give,         .         .         .     287  3^6 

of  jury  for  additional  instructions,        .         .        .     336  382 

APPRAISEMENT  under  revenue  laws,         .        .        .271  308 

APPROPRIATE  DOMINION, 170  181 

APPROPRIATION  of  payments 104  110 

of  public  property  to  private  use,          .         .         .     214  256 

APPURTENANCE  of  steamboat,          ....       74  77 

ARBITER,  private,  decision  of,      ....        .     270  304 

ARBITRARY  refusals  of  instruction,    ....     320  361 

ARBITRATION,  parol  submission  to,   ....     107  117 

ARGUMENT  of  counsel,  judge  referring  jury  to,         .     292  340 

ARGUMENTATIVE  INSTRUCTIONS  not  allowed,   .    357  411 

ARREST,      . 110,270  122,304 

ART  AND  SCIENCE,  terms  of,           ....      81  83 

ARTICLES  specified  in  contract,  identity  of,          .        .     285  332 

patented,  identity  of, 122  136 

of  merchandise  under  insurance,           .        .        .     206  242 

ASSAULT,  and  defence  of  5on  a^.sauZi  (demesne,  &c.,      .     166  173 

upon  officer, 270  305 

ASSENT  to  inquiry  by  opposite  party,  effect  of,    .        .    307  353 

of  grantee  in  deed,       .         .         .         .        .         .     152  155 

ASSESSMENT  of  taxes, 105  111 

of  damages,  when  court  cannot  make,           .        .     276  323 

of  damages  in  general, 434  513 

ASSIGNMENT  of  account  in  satisfaction,    .        .        .185  217 

absolute  or  for  security, 173  189 

to  creditor ;  possession, 172  189 

voluntary,  for  benefit  of  creditors  ;  faii*ness  of,    .     173  190 

preference  of  creditors, 251  288 

fraud, 251,253  288 

48 


754 


INDEX. 


FAQE 


ASSIGNMENT^  {Continued). 

presumption  against  fraud,  . 

delivery,       .         .         .         .         . 

release  of  promissoiy  note  in, 

of  errors  cannot  enlarge  bill  of  exceptions, 
ASSOCIATION,  trade  ;  membership,    . 

constitution  and  by-laws, 
ASSUMING  verdict  in  an  instruction,   . 
ATTORNEY  excepting  for  himself  will  not  avail  client, 
AUCTION  sale  of  lots  ;  fraud,      . 
AUTHORITY  of  agents, 

of  bank  cashier,   .... 

of  agent  of  surety, 

of  shipping  master, 

to  negotiate  bill  of  exchange  ;  notice  of  \rant  of, 

as  a  ground  of  justification, 

of  instructions,  deviation  from,  by  agent, 

military 

of  towns  to  pay  bounties,     . 

of  widow  to  sell  lands  of  estate,    . 

of  insurance  agent,       .         .         . 

of  street  commissioner,         . 
AUTBEFOIS  CONVICT,  or  ACQUIT, 
AWARD,  what  included  in,    .        . 

objection  to  claim  under,      .        . 

fraud, 

reasonable  time  in,   .   .   . 


288 
199,  288 
288 
725 
322 
68 
586 
634 
285 
146 
146 
146 
146 
129 
146 
146 
147 
147 
149 
240 
307 
41, 557 
311 
311 
287 
151 


B. 

BAGGAGE,  -what  is, 94  96 

delivery  of,  by  railroad, 178  202 

BAILMENT,          . 92  95 

character  of  goods  in, 92  95 

comparative  risk, 92  96 

mistake  in  bill  of  lading, 93  96 

gratuitous;  negligence, 216  259 

BANK  cashier,  authority  of, 129  146 

business  of, 74  77 

notes,  destroyed, 181  210 

notes,  value  of,  in  payment,          ....  181  209 

BANKRUPTCY,  accepting  trust  in,       ...        .  136  151 

new  promise  in, 88  90 

payment  under,  whether  by  mistake,    .        .        .  187  222 

BASIS  of  evidence  for  instruction,         .        .        .        .429  504,^505 

BEARING  of  instructions  on  jury's  determination  of 

facts,        .        .        .        .'       .        .        .        .351  406 

of  witness,  remarks  of  judge  on,           .        .        .  359  413 


INDEX. 


755 


PAGE 

BILL  OF  EXCEPTIONS,  purpose  of,  .        .     492, 493 

cannot  amend  record, 493 

cannot  bring  up  whole  case  for  re-examination,     .     494 


necessity  of, 

not  svpersedeas,    ..... 

imports  absolute  verity, 

bronsrht  up  on  writ  of  error,  .         . 

confined  to  the  immediate  suit, 

separate,  treated  as  independent, 

must  set  out  all  matters  distinctly, 

separate  jjajiers,    ..... 

substitute  for,  in  California  and  Maine, 

"  made  case  "  must  be  turned  into, 

statutory  in  criminal  case,  in  New  York, 

susjiends  rioht  of  other  appeal, 

must  show  injurious  error  affirmatively, 

must  show  injury,         .         .         .         .' 

must  only  present  questions  raised  below, 

must  set  out  ruling  and  objection  at  the  time 

must  not  be  frivolous, 

must  not  be  premature, 

cannot  be  enlarged  by  assignments  of  error, 

blank  left  in,  to  be  filled, 


495-500 
.  500 

500,501 
.  502 
.  502 
.  502 
.  502 

503, 505 
.  505 

505,  506 

.  507 

.  508 

529  et  seq. 

537,538 
539  et  seq. 

549,  566 
.  565 
.  565 
.  565 
505 


must  set  out  instructions,  although  in  writing,  616,  617 

must  set  out  affidavits, 616 

must  show  materiality  of  instructions  refused,      .  620 
must  set  out  instruction  given,  instead  of  that 

refused, 620   • 

must  set  out  motion  to  suppress  deposition,  .  614 

•when  needs  not  set  out  interrogatory,  .         .         .  614 

deposition  taken  in  another  suit,  .         .         .  614 

indorsement    by  opposite    party  does   not  cure 

defect, 615 

mode  and  time  of  preparing,         .         .         .  636  et  seq. 

judge  acknowledging  seal, 000 

See  Exceptions,  Evidence,  Instructions,  Intendment, 

CIAL     DiSCRFTION,     INCIDENTAL    MATTERS,     OBJECTIONS, 
SUMPTION,   EULING,   PRACTICE,   and   SPECIAL  TOPICS. 

BILL  OF  EXCHANGE,  reasonable  time  for  presenting,  139 

knowledge  of  payment  of, 113 

notice  of  dishonor, 115 

See  Promissory  Notes. 

BILL  OF  LADING;  mistake, 93 

BILL  OF  SALE;  delivery, 176 

BODY,  identification  of,  in  murder,        .        .        .        .124 

BONA  FIDE  purchaser  for  value,        .         .         .         .172 

BOND,  of  railroad,  motive  of  purchasing,     ...       95 

whether  satisfaction  or  collateral  security,     .         .     183 

BOOK  of  insurance  companies, 205 

BOUNDARIES,  law  and  fact  as  to 141 


SECTION 

615,616 
618 
619 

620-622 
623 

624,  625 
626 
627 
627 
627 
628 
629 
630 
631 
632. 
666  et  seq. 

680-682 
683  et  seq. 

691,727 
723 
724 
724 
726 

841,842 
840 
847 

848 
832 
832 
835 

836 
880  et  seq. 

000 
JuDl- 
Pre- 

151 
128 
129 

96 

196 

138 

186 

99 

217 
240 
152 


756  INDEX. 

PAGE  SECTION 

BOUNDARIES  (Continued). 

of  county  line, 144  152 

location  of, 146  152 

abandonment  of  course  and  distance,   .         .         .     146  152 

calls  of  deed 149  154 

BOUNTIES,  authority  of  towns  to  pay,          .         .         .134  147 

BOY,  capacity  of,  in  cases  of  injury 2G2  293 

BREACH  of  Conditions  in  insurance  policy,           .         .     207  245 

of  contract  to  deliver  goods ;  damages,         .         .     276  323 

of  covenant  of  seisin,            .....     155  160 

of  official  duty;   damages,    .....     276  323 

BUILDING,  whether  materials  furnished  on  credit  of,    .     106  114 

addition  or  alteration,            .....     127  144 

BURDEN  OF  PROOF  in  negligence,           .        .        .230  265 

instruction, 465,477,483   563,588,601 

BUSINESS  of  a  bank, 74  77 

BY-LAWS  of  an  association, 65  68 


c. 


CALLS  of  boundary  in  a  deed, 

CANCELLATION  of  revenue  stamps,  .... 
CAPACITY  of  parties  to  contract,         .... 

of  boy,  in  cases  of  injury,     .         .         .         .         . 

of  witnesses,         ....... 

for  crime,      ........ 

of  testator, 

CARE  and  skill  in  physician, 

CARS  obstructing  public  street, 

"CASH  NOTES,"  meaning  and  value  of,      . 

CASHIER,  authority  of, 

CATTLE;  negligence  of  owner,     ..... 

guards  on  railroad  ;   negligence,   .... 

CAUSE  of  animal's  death, 

CAUTION  against  false  sympathy,          .... 
«  CHALLENGE,"  meaning  of, 

exception, 

CHAMBERS,  exception  in,  to  order  dissolving  injunction, 

CHANCERY,  jury  in, 

CHANGE  of  building,  whether  addition  or  alteration,   . 

of  domicile,  intention  of, 

of  venue  ;   instruction,           ..... 
CHARGE,  urging  jury  to  agree, 

irrelevant, 

strong  language  in, 


149 

154 

271 

308 

78 

81 

262 

293 

277 

324 

134 

148 

160 

167 

216 

258 

212 

252 

188 

225 

129 

146 

226 

363 

226 

263 

272 

309 

299 

347 

75 

77 

628 

860 

630 

8G5 

16 

9 

127 

144 

112 

125 

491 

614 

299 

348 

347 

401 

360 

414 

INDEX. 


CHARGE  (Coniimied). 

when  specific,  and  when  general,  . 
illustrations  in,      ....         . 
referring;;  ju^T  ^^  argument  of  counsel, 
not  vitiated  by  opinion  of  judge  adverse 

policy  of  the  law,      .... 
of  several  paragraphs  construed  together, 
as  to  evidence  ;   general  rule, 
as  to  circumstantial  evidence. 


362,  363 

.  291 

.  292 
to  the 

.  292 

.  297 

.  428 

.  4G7 


See  Insteuctions,  Requests,  and  especial  to])ics 
CHARACTER  of  verdict,      ......     284 

CHATTEL  sale ;   estoppel,    ...  .         .       97 

mortgage,  negligence  in  foreclosing,      .         .         .     235 
instruction  as  to  diligence,  .         .      463, 4G4 

fraud, 245 

reservations, 

declaration  of  former  owner, 

salp  of,  ill  part-payment  of  debt,  .         . 
CmCUM STANCES  of  precaution, 
CniCUMSTANTIAL  evidence,      . 

instruction,         .... 
CITY,  addition  to,  whether  according  to  plat, 
CLAIM  of  ownership,  knowledge  of, 

copy  of;  waiver  by  administrator, 

against  estates,      ..... 

under  award,  objection  to,     . 

to  water  at  mines,  negligence  in  prosecuting, 
CLASSES  of  evidence  ;   instruction, 
CEARNESS  of  language  in  instruction, 
CLERICAL  errors  in  instruction, 
CLIENT,  privileged  communications  of, 
CODE,  rule  as  to  juries  under,        .         . 
COLLATERAL  evidence  by  written  agreement, 

security,  whether  promissory  note  is,     . 
COLLISIONS  of  vessels ;  negligence,    . 

precautions  against, 
COLOR  of  title  in  good  faith, 
COLORABLE  or  actual  possession,        .         . 
COMBINATION  to  charge  one  as  partner,    . 
COMMENTING  on  evidence, 
COMMISSIONER  of  streets  ;  authority,       . 
COMMON  design,  ..... 

COMMUNICATION,  separate,  of  juror  with  court  not 

allowed 338 

privileged,  of  client, 75 

in  slander, 257 

COMPARATIVE  risk  in  bailment 92 

negligence, 221, 225 


.  149 

.  250 

.  172 

.  220 

.  63 

.  467 

.  148 

.  113 

.  112 

.  267 

.  272 

.  235 

.  430 

.  363 

.  368 

.  75 

.  17 

.  83 
178, 185 

.  232 

.  221 

.  155 

.  169 

.  250 
34, 420 

.  270 

.  69 


757 

SECTION 

416,417 
339 
340 

341 
344 
503 
567 

331 

99 

274 

559, 560 

282 

154 

287 

187 

260 

43 

567 

152 

127 

124 

300 

311 

273 

507 

417 

422 

77 

10 

85 

203,217 

266 

261 

161 

179 

287 

33, 498 

307 

73 

386 
77 

291 
96 

263 


758 


ESTDEX. 


FAGE  SECTION 

COMPASS;  variation,  .......     274  317 

COMPETENCY  of  witnesses, 277  324 

COMPLAINT  of  party  as  to  own  instruction  not  allowed,    344  395 
COMPLIANCE,    substantial,    with    contract    in  which 

"more  or  less"  occurs,    .....     172  192 

COMPOSITION  agreement,  waiver  of  rights  under,      .     112  124 

COMPROMISE  in  action  for  damages,           .         .         .190  229 

oflFer  of, 107  116 

CONCEALMENT  in  insurance, 199  234 

CONCISENESS  requisite  in  instructions,       .         .         .     370  426 

CONDITIONAL  or  absolute  gift,            .         .         .         .107  115 

or  absolute  sale, 107  118 

CONDITIONS,  fulfilment  of,           .....       86  87 

of  deed ;  knowledge  of  violation,          .         .         .113  127 

declarations  of  grantor  in  breach,           .     488  607 

for  release,  payment  under,            .         .         .         .188  226 

of  insurance  policy  as  to  criminal  misconduct,       •     207  245 

waiver  of,        .         .         .        .209  250 

CONFEDERATE  currency;  instruction,        .         .         .436  520 

CONFESSIONS  of  accused 54  45 

instruction, 463,464  559,560 

inducement  to,      ......         •     285  333 

CONFINING  instruction  to  evidence  and  issues,  .         .     352  407 

to  single  decisive  issue, 295  342 

CONFORMITY  to  instructions  in  criminal  cases,  .         .     393  841 

presumed,     . 20  18 

CONJECTURAL  evidence, 464  561 

CONNECTION  and  effect  of  facts ;  instruction,     .         .     356  409 

CONSIDERATION  by  court  or  jury  must  be  entire,      .       20  20 

distinct  and  independent  of  promissory  note,        .     179  206 

proof  of  failure  of, 180  207 

instruction 489  609 

CONSIGNOR,  sale  by ;  reasonable  time  for  disaffirming,    140  151 

CONSTITUTION  and  by-laws  of  an  association,   .         .       65  68 

CONSTITUTIONALITY,  question  of,    .        .        .        .63  64 
CONSTRUCTING  railroad ;  negligence,        .         .      219,220           260,261 

CONSTRUCTION  of  instruction  or  charge,  .         .         .     3G1  415 

of  instruments, 55  46 

of  instruments  by  jury,  .         .,       .         57,153,418     49,155,494 

of  contracts, 80,81  83,85 

of  release,    ........       80  83 

of  promissory  note 80  83 

of  words  or  terms,        .....          80, 81  83 

of  parol  contracts,         ......       84  86 

and  legal  effect  of  deeds 148  154 

of  mortgage  must  relate  to  every  clause,       .         •     152  155 

of  charge  of  several  paragraphs,            .         .         .     297  344 

double,  of  instruction, 369  424 


INDEX.  759 

PAGE  SECTION 

CONSTRUCTION  (Continued). 

insurance  policy,            ......     206  242 

and  effect  of  forei<!;n  law 283  331 

of  bills  of  exception, 518-528  056-665 

most  strong  against  exceptor,      520-523  657-660 

CONSTRUCTIVE  delivery 176,177  195,200 

and  actual  possession, 163  169 

and  legal  notice, .118  129 

CONTEMPT,  exceptions  as  to,       ....         .     630  864 

CONTENTS  of  lost  deed,      .        .        .        .        .        .149  154 

CONTINUATION  of  way 271  307 

CONTRACT,  implied,  _ 79  82 

capacity  of  parties,       ......       78  81 

written ;   construction, 80  83 

public  policy  in  regard  to, 81  84 

proof  of. 85  ^86 

performance, 85  86 

form  of  action  on, 86  86 

abandonment  of, 110  122 

intention  to  deliver, .     103  106 

whether  dependent, 112  126 

notice  printed  on, 117  129 

reasonable  time  for  performing,    ....     136  151 

enlargement  of  time  in, 136  151 

rescinding  for  fraud  ;  time, 138  151 

for  purchase  of  land,  time  under,          .         .         .     138  151 

(old)  for  sale  of  land, 150  155 

for  sale  of  land,  issue  in  reforming,       .         .         .154  158 

of  sale,          . 171  184 

substantial  compliance  with,  where  "more  or  less" 

occurs  therein,           ......     175  192 

acceptance  of  defective  labor  under,      .        .         .     178  201 

for  sale  of  land ;  fraud 250  285 

to  deliver  goods ;  interest  as  damages,          .         .     276  323 

identity  of  articles  specified  in 285  332 

CONTRACTOR,  whether  materials  furnished  on  credit  of,    106  1 14 

CONTRADICTORY  qualifying  instructions,           .         .     378  437 

CONTRIBUTORY  negligence,       .         .       221-225,  228,  229  263, 265 

in  ways, 233  267 

CONTROVERTED  facts  in  specific  performance,  .         .       83  85 

CONVEYANCE,  absolute,  whether  mortgage,        .         .       60  57 

fraudulent  intention  of,          .....     109  119 

mesne,  validity  and  efiect  of,         ...         .     149  154 

presumption  of,     . 151  155 

by  tenant  in  common,  possession  under,        .         .170  180 

of  real  estate,  damages  for  failure  in,    .         .         .     272  312 

of  lands,  obligation  of,  dependent  or  independent,     189  228 

COPY  of  claim,  waiver  of,  by  administrator,            .         .111  124 

of  instrument,  which  writing  is,    .         .         .         .     285  332 

COPYRIGHT,  identity  of  articles  under,        .        .        .123  127 


7C0 


INDEX. 


but  incorrect  as 


to  presumption 


CORNER,  marked, 

CORPORATION  as  surety  or  accommodation  indorser, 
(municipal)  obstructiiifr  street, 

accepting  dedication, 
foreign,  existence  of, 
religious,  trustees  of,     . 
public  ;    locntion,  . 
CORRECT  instruction  as  to  evidence, 

universal  proposition, 
CORRECTING  verdict  by  new  trial, 
CORRECTNESS  of  proceedings,  limits 
of, 

CORROBORATIVE  evidence,       . 
COSTS, 

instruction  on, 
CO-tENANT,  ouster  of;  intention, 
heirs  of, 
COUNTY ;  organization, 

line, 

COURSE  and  distance  in  boundaries,  abandonment  of, 
■where  no  monuments  or  corners, 
COURT,  province  of,  in  general,     .         .        . 

law  for,         ....... 

judgment  by,  on  plea  after  verdict, 
statutory,  rule  as  to  law  and  fact  in, 
•  verdict  subject  to  opinion  of,  not  allowed,     . 
right  to  nonsuit  in  trial  by,  .... 

cannot  try  criminal  cases  without  a  jury, 
must  receive  verdict  actually  rendered, 
when,  cannot  assess  damages, 
not  set  aside  verdict  on  own  motion, 
not  bound  to  give  doubtful  instruction, 
open,  instructions  given  in,   . 
when,  must  conform  to  request,    . 
discretion  of,  as  to  instructions,    . 

to  refuse  or  modify  instructions, 
no  separate  communication  with,  by  juror,    . 
should  state  issues,       ..... 

to  judge  of  admissibility  of  evidence,  {see  Admis 

SIBILITY,) 

See  special  topics. 
COURTS,  United  States,  series  of  instructions  in,  . 
CREDIBILITY  of  testimony,  {see  Evidence,)      . 
of  accomplice, 

impaired,      .... 
of  witnesses, 

rule, 

instruction, 

instruction  as  to  party's  own, 
CREDIT,  question  of, 


PAGE 

SECTION 

146 

152 

180 

208 

212 

25:{ 

157 

1G3 

274 

316 

170 

179 

147 

152 

343 

393 

12 

4 

534 

671 

280 

327 

21 

22 

439 

526 

102 

104 

168 

175 

276 

320 

144 

152 

146 

152 

146 

152 

9 

1 

9 

2 

14 

5 

17 

11 

14 

6 

21 

23 

50 

38 

52 

40 

276 

323 

16 

8 

307 

355 

307 

356 

311 

358 

320 

360 

325 

368 

338 

386 

353 

407 

424 


324 
278 
279 
279 
279 
425 
430 
417 
61,  106 


499 

364 
326 
326 
326 
326 
500 
507 
490 
60,114 


INDEX. 


761 


CREDITOR,  deed  void  as  to, 

possession  after  assignment  to, 
preference  of,  in  voluntary  assignment, 
intent  to  hinder,  delay,  or  defraud, 
CRIME,  capacity  for,       .... 

degree  of;  instruction, 
CRIMINAL  intent,         .... 

case  ;   court  cannot  try  without  jury, 
trials ;  law  and  fact, 

requests,    .... 
instruction, 
obligation  to  obey  instruction  in, 
issue  in  civil  cases, 
cases ;   exceptions,         .         .         . 
CROSS  assignments  of  error, 
"  CRUEL  TREATMENT,"  meaning  of, 
CULVERT,  necessity  of,  in  railroad, 
CUEE  of  the  error  of  refusal  of  instruction, 
CURTILAGE  of  dwelling-house,   . 
CUSTOM  and  usage,     .... 
CUTTING  trees  in  highway,  .        .        , 
damages  in,  .... 


PAGE 

.  154 

.  2j1 

.  2ol 

.  251 

.  134 

.  451 

.  108 

.  50 

.  36 

.  476 
448-475 

.  293 

.  474 

.  510 

.  509 

.  75 

.  263 

.  325 

.  147 

.  67 

.  212 

.  276 


SECTION 
158 

288 
288 
288 
148 
544 
119 

38 

36 
582 
541-579 
341 
578 
636 
635 

77 
294 
367 
152 

72 
254 
823 


r>. 

DAM ;  nuisance  by  flowage,    . 

whether  "  flash-boards  "  part  of,    . 
DAMAGED  goods,  negligence  as  to, 

animals,  negligence  as  to, 

DAMAGES,  knowledge  of  jury  in  estimating, 

interest  in  addition  to,  . 

interest  as,    .         .         .         .         . 

compromise  in  action  for,      .         . 

measure  of,  in  trespass, 

in  right  of  way  ;   necessity  of  culvert, 

for  failure  to  convey  real  estate,    . 

for  death  of  minor  son, 

in  cutting  trees,    .... 

in  trespass 

in  breach  of  official  duty, 

when  court  cannot  assess,     • 

on  breach  of  covenant  of  seisin,  . 

instructions,  .... 

assessment,  ..... 

in  locating  railroad, 
"DANGEROUS  WEAPONS,"  meaning  of, 
DATES  of  instruments  or  records, 
"DEADLY  WEAPONS,"  meaning  of,  . 


.  214 

257 

.   73 

77 

.  229 

265 

.  229 

265 

.   26 

26 

.  104 

109 

79, 276 

82, 323 

.  190 

229 

.  257 

291 

.  263 

294 

.  272 

312 

.  276 

323 

.  276 

323 

.  276 

323 

.  276 

323 

.  276 

323 

.  155 

160 

430-440 

507-526 

.  434 

513 

,  436 

521 

.   73 

77 

.   57 

50 

.   73 

77 

762 


INDEX. 


DEATH  of  animal,  cause  of, 

of  minor  son  ;  damages, 

how  occurred,       .... 

of  party  pending  exceptions, 
DEBT,  part-payment  of,  by  sale  of  chattels, 

on  mortgage ;  part-payment, 
DECEIVE,  intention  to,  .         . 

DECISION  below,  reasons  for,  not  considered  by  appel 

late  court,  (see  Ruling,)  . 
;  of  private  arbiter, 

DECISIVE  single  issue ;  instruction, 
DECLARATIONS  of  grantor  on  breach  of  conditions, 

of  occupant  in  adverse  possession, 

of  a  father  as  to  maternity  of  child, 

dying  ;  weight  and  admissibility, 
defined,    . 

of  former  owner  of  chattel ;  fraud, 
DECREASE  of  risk  in  insurance, 
DEDICATION  of  highway,  . 

of  higliway ;   user, 

of  street,  intention  of,  . 

acceptance  by  municipality,  . 
DEED  ;  instruction  as  to  genuineness,    . 

receipt  for, 

intention  of  delivery,  . 

whether  embracing  particular  lands, 

disaffirmance  by  minor, 

void  for  uncertaintj", 

stake  as  monument  in,  . 

construction  and  legal  effect, 

proof  of  execution,       .        .        . 

contents  of  lost,  .... 

what  boundaries  called  for,  . 

reforming  mistake,        .         .         . 

latent  ambiguity,  . 

indefinite  description,    . 

notice  of  unrecorded,   . 

presumed  existence  when  lost, 

grantee  in,    . 

genuineness,  .... 

time  of  execution  and  delivery,     . 

inference  of  delivery,    . 

delivery  and  acceptance, 

knov.ledge  and  assent  of  grantee, 

implied  disaffirmance  by  minor,    . 

void  as  to  creditors, 

or  will,  whether  instrument  is, 
DEFECTS,  knowledge  of,       . 
DEFENCE  of  son  assault  demesne  and  protection  of 
property, 

of  alibi;  instruction,   . 


PAGE 

272 
276 
207 
566 
172 
187 
97 

518 
270 
295 
488 
109 
286 
282 
281 
250 
203 
156 
156 
157 
157 
482 
59 
94 
125 
140 
145 
146 
148 
148 
149 
149 
149 
150 
150 
150 
150 
151 
151 
151 
152 
152 
152 
154 
154 
159 
113 

166 
469 


SECTION 

309 
323 
247 
728 
181 
221 
100 

656 
304 
342 
607 
179 
334 
328 
328 
287 
235 
163 
163 
163 
163 
599 
55 
97 
139 
151 
152 
152 
154 
154 
154 
154 
154 
155 
155 
155 
155 
155 
155 
155 
155 
155 
155 
158 
158 
167 
127 

173 
468 


ESTDEX. 


Y63 


PAGE 

DEFINITION  of  dying  declarations,  .  .  .  .281 
of  words  in  slander  and  libel,  ....  75 
precise,  in  instruction,  want  of,     .         .         .         .     365 

DEFRAUD  or  delay  creditors,  meaning  of,    .         .         .     244 

intent,    ....     251 

DELAY  of  payment,  vexatious  and  unreasonable,  .        .     138 

DELIVERY  and  acceptance,       _ 175 

under  sale;  time  not  specified,     .         .         .         .139 

constructive,         ......      176,177 

directing  verdict  as  to,  .        .         .         .         .     177 

under  bill  of  sale,  ......     176 

under  mixed  sale,  ......     177 

under  voluntarj'  assignment,  .         .         .         .177 

of  baggage  by  railroad, 178 

of  property  sold, 171 

and  acceptance  of  deed, 152 

of  deed,  time  of, 151 

inference  of, 152 

intention  of, 94 

of  possession  under  voluntary  assignment,  .  .  252 
of  goods,      ........       84 

of  contract,  intention  of, 103 

of  lease ;  instruction, 481 

DEMISE,  extent  of, 144 

DEMURRER,    not  instruction,   to    raise  objection   to 

pleadings, 298 

ruling  on,  not  exceptionable,  .         .         .      586, 587 

DEPENDENT  or  independent  obligation  to  convey  lands,    189 

contract, 11*2 

DEPOSITIONS,  spoliation  of,  .  .  .  .  .127 
objection  to,  referred  to  jury  by  instruction,  .     418 

sending  to  jury's  room, 418 

DESCRIPTION,  indefinite .125 

of  land  in  sheriff's  advertise- 
ment,        ....     145 
in  deed,        .        .        .      143, 150 
in  will,  ....     145 

imperfect  identification  under 141 

DESIGN  in  purchase ;  fraud, 98 

common, 69 

DESTRUCTION  of  bank  notes 181 

of  instruments, 58 

DETERMINATION  of  facts  guided,  but  not  dictated, 

by  instruction, 288,335,351 

DEVIATION  from  instiuctions  to  agent,        .         .         .131 

DILIGENCE  required  of  sheriff, 232 

DIRECT  and  indirect  written  evidence,  ...  27 
interpretation  of  writing,  .....  30 
encroachments  by  railroad, 219 


SECTION 

328 
77 
422 
281 
288 
151 

194 
151 
195, 200 
197 
196 
198 
199 
202 
184 
155 
155 
155 

97 
288 

85 
106 
598 

152 

345 
775 
228 
126. 
142* 
493 
492 
139 

152 
152,  155 
152 
152 
100 

73 
210 

53 

337, 406,  409 

146 

266 

28 

30 

260 


764 


INDEX. 


PAGE 

DIRECTIXG  verdict, 282,440-448 

DISAFFIRMING  sale  of  consignor,  time  for,        .        .     140 

voidable  deed  by  minor 140 

implied,   ....     154 

DISALLOWED  exceptions 622  e^  seq. 

proving,      .         .         .        .     Co7 

DISCHAPtGE  of  private  trust, 273 

of  ii.dorser  by  agreement, 182 

by  novation, 184,  185 

of  surety ;  instruction,  .....     489 

in  bnnkruptcy,  payment  after,       ....     187 

DISCHARGING  juror  before  verdict,    ...         50, 53 

DISCRETION 19 

legal 15,  18 

of  the  court  as  to  instructions,      .         .         .      335, 351 
See  Judicial  Discretion. 

DISHONOR,  notice  of,  and  protest, 

See  Promissory  Notes, 

DISPOSITION  of  mischievous  dog,  knowledge  of, 

DISPUTED  signature,  .... 

DISQUALIFICATION  of  witnesses,     . 

DISREGARDING  admitted  testimony, 

DISSENTING  partner,  title  of,  in  sale, 

DISSOLUTION  of  partnership  ;   notice, 

DISTANCE  and  course  in  boundaries  ;  abandonment, 
where  no  monuments  or  corners 

DITCH,  filling  up,  by  railroad, 

DIVERSION  of  trade,  . 

DIVISION  line  ;  location,      . 

DOCUMENTS,  loss  of, 

DOG,  mischievous ;  knowledge, 

DOMICILE,  change  of;  intention, 

DOMINION,  acts  of,      . 

DOUBLE  construction  of  language  in  charge 

DOUBTFUL  instructions  may  be  refused, 

DRAFT,  sight,  time  for  presenting, 

DRIP  of  eaves  for  limitation  period, 

DURESS 

DUTY,  official ;  damages  in  breach, 

parental,        ..... 

standard  of,  .... 

DWELLING-HOUSE,  curtilage  of,      . 
DYING  declarations  defined, 

weight  and  admissibility; 
instructions, 


115, 182 


114 
57 

277 
277 
172 

118 

146 
146 
218 
274 
146 
284 
114 
112 
170 
369 
307 
139 
170 
134 
276 
265 
266 
147 
281 
282 
470 


SECTION 

527-540 

151 

151 

158 

891  et  seq. 

897 

314 

212 

217 

611 

222 

39,42 

16 

8,14 

406, 409 

129,213 

128 
51 
324 
324 
187 
129 
152 
152 
260 
319 
152 
331 
128 
125 
181 
424 
355 
151 
183 
148 
323 
298 
298 
152 
328 
328 
569 


INDEX. 


765 


E. 


EAVES  drip  for  limitation  period, 

EFFECT  of  erroneous  submission  of  law-  to  jury, 

and  construction  of  foreign  law,    . 

of  mesne  conveyance,  . 

of  refusal  to  give  instruction, 

of  injurious  or  harmless  error, 

(legal)  of  instrument  must  be  explained, 
of  single  fact  sometimes  explained, 

and  connection  of  facts  explained, 

of  testimony  explained, 

of  failure  to  prove  truth  of  disallowed  exceptions, 
EFFORTS  of  agent  to  effect  sales,  whether  reasonable, 
EJECTMENT;  instruction,   .... 
ELEVATOR,  negligence  in  regard  to,     . 
EMPLOYMENT ;  knowledge  of  hazard, 
ENCROACHMENT  of  stream  on  land  by  wharf, 

in  highway,  ...... 

direct  and  indirect,  by  railroad,     . 
ENLARGEMENT  of  time  in  contract, 
ENTIRE  law  not  requisite  in  instructions, 
ENTRY  of  government  lands  ;  fraud,     . 
ERASURE  in  instruments,     .... 
ERRONEOUS  submission  of  law  ;  effect, 

instruction  as  universal  proposition,  but  proper  in 
case, 

instruction  may  be  refused  or  modified, 
ERROR  in  record  of  judgment,     .         .         . 

without  injury,      ..... 

of  refusal  cured,  ..... 

injurious  or  harmless;  legal  effect, 

harmless  in  admittinn^  evidence,    . 

harmlessness  must  be  manifest,     . 

favorable 

clerical, 

must   be   affirmatively   shown  by  bill  of 
tion, 

cross  assignments,         .... 

ESCAPE  ;   negligence  of  officer 235 

ESCROW, 32 

ESTABLISHMENT  of  road ;  documentary  proof,         .     284 

ESTATE,  claims  against, 267 

ESTIMATING  credibility ;  rule,   .        .         .         .        .425 

damages  ;  personal  knowledge  of  jury,         .         .       26 

ESTOPPEL, 97,285 

EVASION  in  instruction, 370 


PAGE 
.   170 

.   19 

.  283 

.  149 

.  324 

338  et  seq. 

.  349 

.  349 

.  356 

.  419 

657 

173 

488 

225 

114 

145 

213 

219 

137 

348 

250 

126 

19 


343 
.  325 
.  276 
.  20 
.  325 
338  et  seq. 
.  344 
.  344 
.  344 
.  268 


excep- 
529  et  seq. 
.  509 


SECTION 
183 

17 
331 
154 
365 
387-393 
404 
404 
409 
496 
897 
191 
608 
263 
128 
152 
255 
260 
151 
403 
285 
141 
17 

393 
368 
321 
18 
367 
387-393 
396 
394 
395 
422 

666  et  seq. 
635 
271 

31 
331 
300 
500 

26 

99,  332 

425 


766 


INDEX. 


PAGE 

EVIDENCE,  striking  out  plea  after,       .        .        .         .13 

admissibihly 27,  278 

and  materiality,         ....    424 
(written),  direct  and  indirect,         ....       27 

sufficiency 33,426 

commenting  on, 34,420 

circumstantial,       .......       53 

instruction, 467 

of  loss  of  instrument,  ......       G2 

of  loss  of  document, 284 

of  failure  of  consideration,  .....  180 
of  payment  as  to  relation  between  parties,    .         .     189 

one-sided, .282 

of  maternity  of  child,  by  father's  declarations,      .     286 

by  inspection  of  injured  limb 230 

collateral,  by  written  agreement,    ....       83 

corroborative,        .......     280 

erroneous  instruction  correct  as  to,        .         .         .     343 
harmless  error  in  admitting,  .         .         .         .     344 

incompetent,  not  excluded  by  instruction,      .         .     344 
and  issues,  instructirm  confined  to,        .         .         .     352 
instruction  must  be  based  on,        ....     354 

specific  relations  of  instructions  to,       .         .      416,466 
sending  written,  to  jury's  room,    ....     418 

charge  concerning ;   general  rule,  .         .         .     428 

basis  of,  for  instruction, 429 

classes  of;   instruction, 430 

conjectural 464 

exceptions  to, 607  et  seq. 

what  general  objection  relates  to,       .        .     607 

reviewing  issues  of  fact  on  error,  under 
Ohio  statute, 607 

what  bill  must  set  out,  and  how,         .      609,  61 1 

bill  must  set  out  circumstances, 

must  show  what  evidence  was,   . 

admissibility  of  dying  declarations,    . 

whi-n  ruling  on,  dying  declarations  reviewed,    609 

rule  of  all  the  ev"idence,     .         .         .      611-613 

improper  admission, 

diagram  must  be  set  out,    .... 

view  of  jury  as  to  setting  out  evidence, 

record  from  another  slate, 

indorsement  on  bill  by  opposite  party  not 
cure  defect, 

requiring  further  evidence  by  plaintiff  on 
prima  facie  case,  .... 

statement  as  to  reading  volume  in  evidence, 

in  chancery,        ...... 

matters  as  to,  not  reviewable,  .  .  .  594  et  seq. 
admitting  evidence  after  testimony  closed,  .  .  594 
regulation  and  restriction  of  evidence,  .  .  .  595 
rejection  of  evidence  partly  admissible,  •  .  595 
mistaken  admission  of  testimony,  .         .         .     697 


607 
608 
609 


613 
613 
614 
614 

615 

615 
615 
615 


5 

27,  325 

499 

28 

32,  501,  502 

33,498 

43 

507 

63 

331 

207 

227 

329 

334 

265 

85 

327 

393 

396 

395 

407 

408 

487-506 

492 

503 

504,  505 

506 

561 

820  et  seq. 

820 

821 
824,  825 
822 
822 
823 
823 
826,  827 
828 
829 
831 
831 

836 

837 
838 
839 
792  et  seq. 
792 
793 
794 
795 


INDEX.  767 

PAGB  SECTION 

EVIDENCE  {Contijiued). 

permission  of  leading  questions,  ....     598  796 

party's  own  testimony, 598  797 

admitting  witnesses  who  violate  order  of  separation,    598  798 

improper  evidence  of  offer  to  compromise,   .         .     598  799 

immaterial  evidence 598  800 

subsequent  waiver  by  opposite  party,    .         .         .     599  801 

rejection  of  account  book, 599  801 

secondary  evidence, 599  802 

modification  of  party's  testimony,         .         .         .     599  802 

failure  to  connect  admitted  evidence,    .         .         .     600  803 

proof  of  execution  of  deed,           .         .         .         .     600  803 

qualificaiions  of  an  expert, 600  804 

refusal  to  strike  out  evidence,        ....     600  805 

qualification  of  witness  as  to  right  and  wrong,  &c.     60 1  806 

rejecting  proof  not  specific, 601  807 

commenting  on  evidence  within  due  limits,  .         .     601  808 

refusing  to  direct  verdict, 602  809 

immaterial  rulings  on, 603  810 

refusal  to  instruct  as  to  witness  of  bad  reputation,     603  811 
See  Bill  of  Exceptions,  Exceptions,  Incidental  Matters, 
Instructions,  Judicial  Discretion,  Objections.  Presump- 
tion, Proof,  Ruling,  Testimony,  Witness,  and  special  topics. 

EXAMINING  title ;  negligence, 235  272,  275 

EXCEPTION  to  general  rule  concerning  law  and  fact,  .       14  7 
in  New  York,  to  general  rule  as  to  excluding  evi- 
dence by  instruction,          ....      344,  346           395,  398 

to  a  law ;  instruction 420  497 

to  ruling,  right  of, 5O8  633 

by  attorney  for  himself  will  not  avail  for 

client, 509  634 

in  criminal  cases, 510  636 

express  and  implied  waiver,       .         .      511-518  637-654 

wnich  becomes  immaterial,          .         .         .618  654 

time  made 549  669 

when  need  not  be,  in  Maine,       .         .         .     549  691 

must  be  based  on  ruling, 582  766 

to  instruction  ;   when  may  be  general,           .         .617  844 
to  term  or  phrase  merely  in  instruction  does  not 

lie, 621  849 

to  evidence,  {see  Evidence,)        ....    607  820 

disallowed ;  proving, 653-656  892 

to  report  of  master,  auditor,  or  referee,         .      626, 627  858 

to  conviction  and  sentence, 628  859 

as  to  closing  argument  in  criminal  case,        .         .     628  859 

as  to  answer  of  juror  on  polling 628  860 

as  to  challenge  of  juror,        .....     628  860 

as  to  granting  of  nonsuit, 629  861 

as  to  judgment 629  861 

as  to  pleadings, 629, 630  862,  866 

reiterated, 630  863 

as  to  contempt 630  864 


768 


IXDEX. 


PAGE 

EXCEPTION  (Continued). 

as  to  order  at  chambers, 630 

as  to  transference  of  cause  to  chanceiy  docket,  .  630 
as  to  issues  in  habeas  corpus  proceedings,  .  .  6;J0 
on  appeal  case  from  J.  P.  to  common  pleas  court,  630 
as  to  exemption  from  execution,   ....     631 

mode  and  time  of  taking 631  et  seq. 

disallowed, 652  et  seq. 

See  Bill  of  Exceptions,  Evidence,  Incidental  Matters, 
Judicial  Discretion,  Instructions,  Objections,  Practice, 
Presumption,  Ruling,  Waiver,  and  special  topics. 

EXCESSIVE  levy,  .  _ 151 

mortgage;  good  faith, 155 

punishment  by  an  in  loco  parentis,       .         .         .     266 

EXECUTED,  or  executory,  sale, 171 

EXECUTION  of  instruments;  intention,  ...  95 
and  delivery  of  deed,  proof  of,  .  .  .  .  148 
and  acknowledgment  of  mortgage,        .        .         .     149 

and  delivery, 151 

exem]jtion  from, 269,631 

EXISTENCE  of  lost  deeds  presumed,   .        .        .        .150 

of  foreign  corporation, 274 

EXPERIENCE  of  jury,  inference  from,  .         .      286,605 

EXPERT,  testimony  of;  instruction,      ....     420 

EXPLANATIONS  by  court  in  writing,  .^       .        .     329 

of  legal  effect  of  instrument  in  instruction,  .         .     420 

of  legal  effect  of  single  fact,  ....     349 

injudicious  effect  of, ,      .     371 

EXTENDING  time  of  payment, 186 

EXTENT  of  demise, 144 

of  land  passing  at  sheriff's  sale,    ....     144 

EXTRA  hazards  in  insurance, 203 

EXTRAJUDICIAL  opinion  of  jury,  when  allowed,        .       17 


865 
865 
865 
866 
867 

868  et  seq. 

891  et  Seq. 


155 
161 
298 

184 
98 
154 
154 
155 

303,  867 
155 
316 

335.817 
497 
370 
497 
404 
427 
220 
152 
152 
235 
12 


F, 

FACT  for  jury,      ..... 

exception  to  general  rule  concerning, 
and  law  ;  rule  in  statutory  courts, 
and  law,  what  is,  ... 

opinion  of  judge  oh,     . 
uncontrovcrted  or  immaterial, 
personal,  knowledge  of  jury  as  to, 
and  law  in  criminal  trials, 
and  law  as  to  negligence, 
in  si;eclfic  performance,  when  for  jury, 
and  law  as  to  boundaries, 
in  presumption  of  payment, 


9 

2 

14 

7 

17 

11 

17 

13 

20 

19 

21 

21 

24 

24 

36 

36 

227 

265 

83 

85 

141 

152 

192 

231 

INDEX.  T60 

PAOB  SECTION 

FACT  {Continued). 

future,  misrepresentation  of,  in  insurance,     .         .     200  234 

materiality  of,  in  perjury, 284  331 

and  law,  mixed  questions  of;  instruction,     .         .     358  412 

single,  legal  effect  of,  explained,   ....     349  404 

instruction  must  not  determine 288  337 

inference  from,  judge  not  draw,     ....     290  339 

relation  of  instruction  to, 349  405 

determination  of ;  bearing  of  instruction,     .      351,355  406,409 

instructions  assuming, 401-408  466, 477 

FACTS ;  connection  and  eff'ect  explained,       .        ,        ..    356  409 

See  Law,  and  special  topics. 

FAILURE  of  consideration ;  proof,       .         .         .         .180  207 

to  convey  real  estate ;  damages,    ....     272  312 

to  prove  truth  of  disallowed  exceptions,         .         .     657  897 

FALSE  statement  in  perjury ;  materiality,      ...       54  44 

sympathy,  caution  against  in  charge,     .         .         .     299  348 

"  FALSE  and  fraudulent  representations,"  meaning  of,  .       74  77 

FAMILY  relationships, 266  299 

FATHER ;  declarations  as  to  maternity  of  child,   .        .     286  334 

FAVORABLE  error,  effect  of, 344  395 

remark  of  judge, 606  818 

FILLING  up  a  ditch  by  railroad, 218  260 

FIKDINGS  of  jury,  inquiry  concerning,  by  court,          .       18  14 

FIRE,  negligence  as  to, 233  268 

FIRM  name, 74  77 

"  FLASH  BOARDS,"  whether  part  of  dam,         .        .       73  77 

FLOWAGE,  nuisance  by 214  257 

FORCE  of  testimony  stated  by  instruction,    .        .        .    419  496 

FORECLOSURE  of  mortgage ;  waiver,         ...     Ill  124 

of  chattel  mortgage ;  negligence,          .         .         .     235  274 

FOREIGN  corporation;  existence,         .         .         .         .274  316 

law,  construction  and  effect  of,      .         .         .         .     283  331 

law,  questions  under, 34, 64  35, 64 

FORM  of  action  on  contract, 86  86 

FORMALITIES  of  will, 160  167 

FRAUD  ;  time  for  rescinding  contract,  ....     138  151 

in  law  and  in  fact, 236  277 

in  sale  of  personal  property,  .         .         .      236, 240  277, 279 

in  judicial  sales 240  280 

in  sale  by  one  in  failing  circumstances,          .         .     240  280 

intent  of, 241  280 

representations  in  sale  of  property,       .         .      242,  243  280 

in  purchase, 98  100 

in  sale ,  ....     100  100 

in  conveyance,  intention  of,           .         .         .        .     109  119 

possession  by  vendor  after  sale,     ....     243  281 

in  chattel  mortgages, 245  282 

49 


770 


INDEX. 


FRAUD  (Continued). 

in  conveyance,      .... 

in  foreclosure,       .... 

representations  as  to  quality  of  land, 

in  entry  of  government  lands, 

in  survey,     

in  contract  for  sale  of  lands, 

in  auction  sale  of  lots, 

in  adding  to  a  will, 

declaration  of  former  owner  of  chattel, 

in  combination  to  charge  one  as  partner, 

in  judgment 

in  award,       ...... 

in  voluntary  assignment, 

presumption  against 

marks  of, 

instruction 

"  FRAUDULENT  representations,"  meaning  of, 
FRIVOLOUS  bills  of  exception,    . 
FULFILMENT  of  conditions. 


FAGE 

.  247 

.  249 

.  249 

.  250 

.  250 

.  250 

.  250 

.  250 

.  250 

.  250 

.  250 

.  250 

251,253 

.  251 

.  254 

484-487 

.  77 

.  565 

.  86 


SECTION 

283 
283 
284 
285 
285 
285 
285 
286 
287 
287 
287 
287 
288 
288 
288 
602-604 

77 
723 

87 


a. 

"  GAME  of  chance,'*  meaning  of,  . 

GENERAL  rule  as  to  law  and  fact,  exceptions  to, 

as  to  patent  questions, 

as  to  charge  on  evidence, 
GENERALITY  of  exceptions,  when  allowable,  553,617, 

rule  as  to,  in  Indiana, 

GENUINENESS  of  deed,_     .        . 

instruction,     . 

GIFT,  absolute  or  conditional, 

or  loan  ;  intention,        .... 
GOOD  faith  of  reservation  in  lease,       .         . 
in  excessive  mortgage, 
in  color  of  title, 
GOODS  in  bailment,  character  of, 

intermingled, 

in  transitu  under  insurance,  loss  of, 

identity  of,    .         .         .         .         . 

damaged ;  negligence, 
GRANTEE  in  deed,       .        .        . 
GRANTOR,  declarations  of,  as  to  a  breach  of  conditions 
GRATUITOUS  bailment;   negligence,   . 
"  GRIST-MILL  i)rivileges,"  interference  with, 
GROUNDS  of  public  policy, 

of  justification  by  authority, 
GUARANTOR,  time  as  to,     . 


75 

77 

14 
158 
428 

7 
164 
503 

et  seq, 
561 

102,844,  et  s. 
714 

151 
482 

155 

599 

107 
106 

115 
115 

104 

155 

.  155 

108 
161 
161 

92 
125 
206 
119 
229 

95 
140 
242 
131 
265 

151 

155 

,  488 

607 

216 

259 

150 

155 

75 
130 

77 
146 

137 

151 

INDEX. 


771 


GUARDIAN'S  receipt, 
GUESTS  at  inn;  notice  of  usage, 

negligence, 
GUILT 


PAOB 

BECTIOir 

274 

318 

118 

129 

225 

263 

63 

43 

H. 

HABEAS  CORPUS,  exceptions  in,  proceedings, .         .    630  865 

HArvMLESS  error, .20  18 

and  injurious  effect,         .        .  338  et  seq.  387-393, 396 

HARMLESSNESS  must  appear  as  to  instruction,         .    344  394 

presumption  as  to, 619  846 

HAZARDS  of  employment;  knowledge,      ...     114  128 

HEIRS  of  co-tenant,  ouster  of, 168  175 

HEIRSHIP 267  299 

HIGHWAY,  obstruction  in ;  reasonable  time,        .        .     140  151 

cutting  down  trees  in, 212  254 

nuisance  in 213  255 

encroachments,     .        .        .         ,         .        .         .     213  255 

safety  of, 220  261 

reasonable  use  of, 221  261 

neglect  of  town, 233  267 

contributory  negligence  in, 233  267 

sufficiency  of,        .         .         .         •        .        .         .273  315 

dedication, 156  163 

HOLDING  over  by  tenant ;  acquiescence  of  landlord,   .     159  166 

HOMESTEAD  and  abandonment,         .        .        .      100,272  101,313 

HOW  and  when  judge  may  urge  jury  to  agree,     .        .     299  348 

inconsistent  instructions  arise,       ....     377  434, 435 

jury  may  apply  for  additional  instructions,    .        .    336  382 

to  present  modifications, 330  371 

HYPOTHETICAL  instructions,    ....     409-415  478-486 


I. 


IDENTITY  of  wood,      . 
of  goods,      .         , 
of  stolen  treasury  notes, 
of  names, 
of  parties,    . 
of  actions,    . 
of  patented  articles, 
under  cojjyright  law, 
of  body  in  murder, 
of  land, 
of  land  imperfectly  described, 
of  roads,       .... 
of  article  specified  in  contract, 


.  125 

.  119 

.  119 

119, 121 

.  120 

.  121 

.  122 

.  123 

.  124 

125, 150 

.  141 

.  142 

.  285 


140 
131 
132 

133, 134 
134 
135 
136 
137 
138 

139,  155 
152 
162 
332 


772 


INDEX. 


FAOB  SECTION 

IGNORANCE  of  law  no  excuse  for  crime,     .         .         .  462  557 

"  ILL  USAGE,"  meaning  of, 74  77 

ILLUSTRATIONS  in  charging, 291  339 

IMMATERIAL  facts, 21  21 

IMPEACHMENT  of  witness,        ....     278,  280  325, 327 

IMPLIED  disaffirmance  of  deed  by  minor,    .         .         .  154  158 

trust, 155  159 

agency  in  behalf  of  insane  person,         .         .         .  130  146 

IMPROVEMENTS  on  land, 147  152 

INACCURACIES    (verbal)   in    charging   or  instructing 

juries 347  400 

INADEQUACY  of  price 151  155 

INAPPLICABLE  and  abstract  instructions,  .         .      379-400  438-465 

INCIDENTAL  MATTERS,  not  reviewable.    {See  below.) 

immateiial  ruling, 584  767 

as  to  commencing  suit,      .         .  584  768 

dismissal  of  premature  action,       ....  584  76& 

preliminary  matter  of  fact  in  admitting  evidence,  .  585  770 

instruction  as  to  credibility,            ....  585  770 

dismissal,  in  part,  of  joint  action, ....  585  770 

stating  reasons  for  ruling, 585  772 

as  to  presence  of  prisoner  at  rendition  of  verdict,  585  773 

misnomer, 585  774 

demurrer, 586  775 

demurrer  to  evidence, 587  775 

nonsuit, 587  776 

motion  to  set  aside  default, 587  777 

testimony  under  inquest  in  default,       .         .         .  588  777 

order  setting  down  a  cause  for  trial,      .         .         .  588  778 

amendment  after  verdict  and  new  trial,          .         .  588  779 

refusal  to  stay  execution, 689  780 

refusal  to  question  jurors, 589  781 

issue  of  fact  in  equity, 589  782 

decision  as  to  alteration  of  instrument,          .         .  589  783 

sufficiency  of  notice, 590  784 

submission  of  legal  question  decided  aright,          .  590  785 

decision  of  remote  inferior  tribunal,      .         .         .  590  786 

land  damages, 591  786 

court  trying  fact,  [and  contra,]      ....  691  787 

refusal  to  order  further  specifications,    .         .         .  593  788 

preliminary  investigations, 593  788 

disallowance  of  exceptions  in  criminal  trial,           .  593  788 

decisions  of  special  courts  and  J.  P.,  [and  contra,]  593  789 

capital  case  in  United  States  courts,      .         .         .  594  790 

verdict, 594  791 

See  Bill  of  Exceptions,  Evidence,  Exceptions,  Instructions, 

Judicial  Discretion,  Objections,  Presumption,  Ruling,  and 
special  topics. 

INCOMPETENT  evidence  not  excluded  by  instruction,  344  395 
INCONSISTENT  instructions,       .-        .        .        .     375, 377          434, 435 


INDEX. 


773 


INDEFINITE  description,     . 

enlargement  of  time  in  contract,  . 
time  for  payment  of  accepted  order, 
specification  of  deliverj', 
description  of  land, 


PAOB 

.  125 
.  137 
.  139 
.  139 
143, 150 


in  sheriff's  advertisement,        .     145 

time, 135 

instructions,  .......     374 

reading  of  law  not  instruction,      ...         .      288,  290 

INDEPENDENT  consideration  of  promissory  note,       .     179 
or  dependent  obligation  to  convey  land,         .         .     189 

INDICTMENT;   alteration 127 

charging  several  offences  ;  instruction,  .         .    474 

INDIRECT  and  direct  written  evidence,  ...       27 

encroachments  by  railroad, 219 

INDORSEMENT  on  promissory  note,  .        .        .        .128 

instruction, 490 

INDUCEMENTS  to  confession  of  prisoner,  .        .        .285 
INFERENCE  from  silence  of  party,       .         .         .      269, 285 

of  delivery  of  deed, 152 

from  experience  of  jury, 286 

from  instruments, 59 

of  fact,  judge  not  to  draw 290 

"  IN  LIQUIDATION,"  meaning  of,        ....      74 

INNKEEPERS;  liability, 93 

INNS;  notice  to  guests  of  usage, 118 

INQUIRIES  of  juries  by  the  court  as  to  their  findings,  .       18 

on  general  verdict  of 
guilty,  .         .         .627 

INSANE  person,  agency  implied  in  behalf  of,         .         .     130 
INSPECTION  of  injured  limb  in  evidence,    .        .        .230 

INSTRUCTIONS 9 

binding  on  jury, 10,  11 

jury  presumed  to  understand  and  obey,  .  .  20 
in  criminal  trials,  (see  below,)  ....  36 
to  disregard  admitted  testimony,  ....     277 

deviation  from,  by  agent, 131 

to  jury,  nature  of, 287,  347 

must  apply  the  law, _    .     287 

must  be  confined  to  the  law,  and  not  determine 

facts 288 

not  by  reading  law  books,  ....  288-290 
jury's  obligation  to  obey,  in  criminal  case,  .  .  293 
must  specifically  present  substantial  issues,  .  .  294 
may  be  confined  to  a  single  decisive  issue,  .  .  295 
not  to  raise  objections  to  pleadings,  .  .  .  298 
not  to  be  doubtful,  (see  below,)     ....     307 

oral  and  written, 312-320 

discretion  of  the  court, 320 

incorrect  or  inappropriate,    .....     324 


SECTION 

139 
151 
151 
151 

152,  155 
152 
150 

430,  431 
338 
206 
228 
142 
576 
28 
216 
146 
613 
333 

304,  322 
155 
335 

56 
839 

77 

96 
129 

14 

859 

146 

265 

2 

2,  3 

18 

36 

324 

146 

330, 402 

336 

337 
338 
341 
342 
342 
345 
355 
359 
360 
365 


774 


INDEX. 


INSTRUCTIOXS  {Co7it{nued). 

erroneous,  may  be  refused  or  modified,  .         .  325 

incorrect  as  universal  proposition,  but  correct  on 

the  evidence, 343 

party  cannot  complain  of  own,      ....  344 

cannot  exclude  improper  evidence,         .         .         .  344 

must  cover  all  essential  issues,      ....  347 


relation  of,  to  facts, 


349,  351,  356,  622 


must  be  confined  to  evidence  and  issues,  .  .  352 
must  not  withdraw  issues,  .....  354 
must  guide  in  determining  facts,  ....  355 
may  point  out  connection  and  effect  of  facts,  .  356 
must  not  be  argumentative,  ....     357 

construed  as  a  whole, 361,621 

must  be  clear  in  language,  (see  below,)  .      363,  370 

sua  motu  of  court,  oral  remark  of  judge  on,  .  364 
may  be  withdrawn  or  reversed,  .  .  .  337, 364 
uncertain,  (see  above  and  below,)  .         .         .     365 

obscurity  from  technical  language,         .         .         .     368 

from  verbosity, 369 

double  construction,      ......     369 

omissions  or  evasion  in,  (see  below,)     .         .         .     370 

injudicious  explanations, 371 

ambiguous,  {see  above,)         ....      372,  373 

indefinite,  {see  above,)  ......     374 

inconsistent,  ......      375, 377 

how  presented 375 

must  be  given  in  open  court,  unless  waived,       307,  308 

additional,  after  jury  retire,  ....      335,  336 

on  amendment,  {see  below,)  .         .     337 

right  of  prisoner  to 338 

refusals,         . 320-324 

abstract  and  inapplicable,      ....      379-400 

assuming  facts, 401-408,  622 

specific  relations  to  evidence,         .         .       416-433,618 

hypothetical, 409-415 

as  to  credibility  of  party's  own  witnesses,  .  .417 
as  to  personal  knowledge  of  jury,  .         .         .     418 

referring  objection  to  deposition  to  jury,  .  .418 
referring  written  instruments  to  jury,  .         .         .419 

stating  testimony, 419 

stating  force  and  effect  of  testimony,    .         .         .419 

as  to  testimony  of  expert, 420 

basis  of,  in  evidence 429 

as  to  classes  of  evidence,  .....  429 
as  to  several  offences  in  indictment,       .         .         .     474 

multiplicity, 475 

verbal  omissions, 476 

as  to  exceptions  to  the  law,  .....  476 
refused,  not  to  be  read  in  hearing  of  jury,  .  .  476 
not  given  as  trial  i)rogresses,  ....  477 
submitting  evidence, 477 


SECTION 

368 

393 

395 

395 

399 

(       405,406, 

)        409,851 

407 

407 

409 

409 

441 

415,849 

417,426 

418 

385,419 

420-422 

422 

423 

424 

425 

427 

428, 429 

430,431 

433-435 

432 

356 

380, 382 

383 

386 

360-364 

438-465 

466-477,851 

487-506,845 

478-486 

490 

491 

493 

493 

495 

496 

497 

504, 505 

506 

576 

580 

583 

584 

585 

588 

589 


rNX>EX. 


775 


SECTION 


INSTRUCl'lONS  {Continued). 

ancillary, _   • 

presumptions  as  to,  on  bill  of  exception, 
matters  as  to,  not  reviewable.     {See  below.) 

immaterial  instructions, 

superseded  special,        ...... 

omission  to  give,  when  not  requested,  {see  above,) 
answering  question  of  hung  jury  as  to  dissent  of 

one  juror, 

rulings  or  instructions  as  to  plea  in  abatement, 
refusirig  to  give  instruction  on  point  of  law  so 
stated  as  to  include  fact,  .... 

referring  matter  to  experience  of  jury, 

favorable  remark,  ...... 

See  Bill  of  Exceptions,  Exceptions,  Evidence,  Incidental 
Matters,  Instructions,  Judicial  Discretion,  Objections, 
Presumption,  Ruling,  and  special  topics. 
See  Charges,   Modifications,  Refusals,  Requests,  Repeti- 
tions, and  special  topics. 

INSTRUMENT,  whether  deed  or  will, 
copies  of,      .... 
alteration  by  erasure  and  interlineation; 
reformation  of, 
construction  by  jury. 


.     477 
617,619 


603 
603 
604 

605 
605 

605 
605 
606 


591 
846 

812 
812 
813 

814 
815 

816 
817 
818 


intention  to  execute, 
loss  of,  ... 

construction,  .         . 

one  expLiined  by  another, 
dates,   .... 
sealing,  .         .         * 

destruction,  . 
inferev.ee  from, 
legal  effect  explained,    . 
INSURANCE ;   insurable  interest, 
misrepresentations, 
materiality  of  representations, 
warranties,    . 
concealment, 
violation  of  conditions, 
misdescription  of  property, 
prohibition  of  alienation  in  policy, 
misrepresentation  of  value, 
life,  warranties  in, 
marine  ;    seaworthmess, 
increase  of  risk,    . 
decrease  of  risk,  . 
extra  hazards, 
repairs  in,     . 
wager  policy, 
what  is  covered  by, 
agent,  authority  of, 
com])any's  books, 
application  for. 


.  159 
.  285 
.  126 
.  270 
57,  153 
.   95 


167 
332 
141 

304 

49, 155 

98 


.  62 

.  55 

.  56 

.  57 

.  58 

.  58 

.  59 

.  349 

.  196 

196-198 

.  198 

.  197 

.  199 

.  200 

.  201 

.  202 

.  202 

.  202 

.  202 

.  202 

.  203 

.  203 

.  204 

.  204 

204,  205 

.  205 

.  205 

.  205 


63 

46 

48 

50 

52 

53 

56 

404 

233 

234 

234 

234 

234 

234 

234 

234 

234 

234 

234 

235 

235 

235 

236 

237 

238, 239 

240 

240 

240 


576                                            INDEX. 

PAGE 

SECTION 

INSURANCE  (Contirmed). 

note 

.     205 

241 

loss  of  goods  in  transitu  under,    . 

.     206 

242 

marine  ;   presumption  of  loss, 

.     206 

243 

construction  of  policy  under  loss. 

.     206 

242 

articles  of  merchandise  under, 

.     206 

242 

misconduct  or  negligence, 

.     206 

244 

against  criminal  misconduct  of  agent,  . 

.    207 

245 

war  risks  of  vessels,      .... 

.     208 

246 

life,  how  death  occurred  under, 

.     208 

247 

abandonment  of  vessel. 

.     209 

248 

preliminary  proof  of  loss. 

.     209 

249 

waiver  of  conditions,     .... 

.     209 

250 

negligence, 

.     235 

270 

INTENDMENT,  reasonable,  in  favor  of  bill  of  excep- 

tions, 519,523-528 

657,661-665 

INTENTION  of  mortgage  in  absolute  conveyance 

.       60 

57 

as  to  warranty, 

.       89 

91 

in  delivering  deeds,       .... 

.       94 

97 

in  writings, 

.       94 

97 

of  executing  instrument. 

.       95 

98 

in  purchasing  railroad  bond, 

.       95 

99 

to  decline,     ....... 

.       97 

100 

of  testator  as  to  personal  property,        .        . 

.     102 

102 

as  to  revocation, 

.     102 

102 

ratification, 

.     102 

103 

of  adverse  possession,  .... 

.     102 

104 

of  taking  possession  under  a  will, 

.     102 

104 

of  ouster  of  co-tenant. 

.     102 

104 

of  purchase  or  sale,       .... 

.     102 

105 

of  mortgage, 

.     102 

105 

of  delivery  of  a  contract, 

.     103 

106 

of  property, 

.     104 

107 

of  landlord  to  evict  tenant,  .... 

.     105 

112 

of  gift  or  loan, 

.     106 

115 

of  fraudulent  conveyance,     .         .         .       , 

.     109 

119 

criminal, 

.     108 

119 

of  payment  of  school  funds,          . 

.     109 

121 

of  waiver,     ...... 

.     110 

124 

to  change  domicile,       .... 

.     112 

125 

fraudulent, 

.     241 

280 

to  dedicate  street,          .... 

.     157 

163 

INTEREST  as  damages,         .... 

79,  276 

82, 323 

insurable, 

.     196 

233 

in  addition  to  damages,         . 

.     104 

109 

right  to 

.      79 

82 

INTERFERENCE  with  "  grist-mill  privileges," 

.     150 

155 

INTERLOCUTORY  verdicts. 

.       19 

15 

INTERMINGLED  goods, 

.     125 

140 

INTERPRETATION  of  writings,  direct, 

.       30 

30 

of  parol  contracts,         .... 

.       84 

86 

of  surveys 

.     153 

156 

INDEX. 


777 


INVENTIONS,  patents  for 

INVENTOR,  surrender  of  patent  right  by,  , 
IRRELEVANT  charge,  .... 

ISSUE  in  reforming  contract  for  sale  of  lands, 
ISSUES,  instruction  must  cover  substantial,    , 

and  evidence,  instructions  confined  to,  . 

court  must  state,  ..... 

instructions  must  not  withdraw,    . 

criminal,  in  civil  cases,  evidence  in,       . 


PAGE 

157 
158 
347 
154 
347 
352 
353 
354 
474 


SECTION 

164 
164 
401 
158 
399 
407 
407 
407 
578 


J. 


JOINT  liability,      . 

occupation,  purpose  of, 

purchase  of  land, 
JUDGE  cannot  amend  verdict, 

opinion  of,  on  facts, 

not  to  draw  inferences  of  fact,       .         .         .         . 

referring  jury  to  arguments  of  counsel, 

may  caution  jury  against  false  sympathy, 

may  urge  jury  to  agrea,        .         .         .         .         . 

abstract  remark  of,        .....         . 

oral  remark  of,  concerning  instruction  sua  motu,  . 

remark  of,  on  the  bearing  of  witness  or  testimony, 

opinion  of,  against  the  policy  of  the  law,  does  not 
vitiate  charge 

JUDGMENT  on  plea  by  court  after  verdict, 

payment  of,  .         .         .         .         , 

payment  or  purchase  of, 

fraudulent, 

error  in  record  of,  ... 

exception  to,  .... 

JUDICIAL  ))roceedings,  .        .        , 

sales,  fraud  in,       .  '      ,        .         . 

JUDICIAL  DISCRETION,  not  reviewable, 

motions  to  dismiss, 

to  strike  out  docket  entries, 

refusal  of  nonsuit, 

to  quash  indictment, 
of  leave  to  withdraw  plea  of  guilty, 
to  compel  election  by  plaintifi", 
of  separate  trials  of  accused, 

demurrer  to  plea  of  abatement,     . 

admission  of  parties,     .         . 

refusal  of  continuance, 

allowing  or  refusing  amendments, 

ordering  specification,  . 

directing  jury 

plea  puis  darrein  continuance, 

order  of  admitting  evidence. 


87 
165 
172 

11 

20 
290 
292 
299 
299 
325 
364 
359 


292 

.   14 

183, 184 

.  185 


250 
276 
629 
269 
240 
567 
567 
669 
569 
569 
569 
569 
570 
570 
670 
570 
570 
571 
571 
572 
672 


89 

171 

188 

3 

19 
339 
340 
347 
348 
367 
418 
413 

341 
5 
216,217 
219 
287 
321 
861 
304 
280 
729 
730 
730 
730 
730 
730 
731 
732 
731 
733 
734 
735 
736 
737 
738 
739 


778 


DSTDEX. 


PAGB 

SECTION 

.  572 

740 

.  573 

741 

573, 574 

741 

743 

.  573 

742 

.  573 

744 

m- 
.  574 

745 

as- 
.  574 

746 

.  575 

747 

.  575 

748 

.  575 

749 

.  575 

- 

749 

.  575 

750 

.  576 

751 

.  576 

751 

.  570 

751 

.  576 

751 

576,  578 

752 

,757 

.  577 

753 

.  577 

754 

.  577 

755 

.  577 

756 

.  361 

415 

JUDICIAL  DISCRETION  (Continued). 

cross-examination,         .... 

recnllins;  witness,  ..... 

further  evi'lence,  ..... 

jury  taking  deposition  to  room,     . 

withdrawing  auditor's  report, 

prohihiting  defendant,  on  opening  case,  to  com 
ment  on  plaintiff's  evidence, 

refusing  to  stop  the  reading  of  evidence  first  as 
sented  to,  

recommitting  auditor's  report, 

disallowing  reading  statute  to  jury, 

illustrations, 

allowing  improper  argument, 

ordering  consolidation, 

refusing  to  return  jury  to  their  room,  . 

recalling  jury  to  instruct  them, 

refusal  to  reinstruct, 

to  ask  jury  the  ground  of  their  verdict, 

granting  review  or  new  trial, 

giving  plaintiff  option  to  remit,    . 

refusing  certificate  of  cause  of  action,  . 

apportionment  of  costs,         .... 

discharge  by  habeas  corpus, 

refusing  paitially  erroneous  instructions, 
See  Bill  of  Exceptions,  Evidence,  Exceptions,  Incidental 

Matters,  Instructions,  Objections,  Presumption,  IIuling, 

and  special  topics. 
JURISDICTION  of  J.  P 

legal, 

JUROR  no  right  to  separate  communication  with  court, 
JURY,  fact  for 

mixed  questions  for,      ..... 

instructions  binding  on,         .... 

in  chancery,  ...... 

in  causes  under  code, 

in  statutory  courts  of  special  jurisdiction,     . 

extrajudicial  opinion, 

inquiry  of,  by  court,  as  to  findings, 

judgment  and  discretion  of,  . 

effect  of  submitting  law  to,  . 

presumed  to  understand  and  obey  instructions, 

personal  knowledge  of,  .... 

objection  to,  after  trial,  .... 

in  ciiminal  trials,  ..... 

criminal  cases  not  tried  without,   . 

discharging  or  withdrawing  jure  r  before  verdict,  50,  53 

construction  of  instruments  by,     .         .         .        57 

in  specific  ];erformance, 

rot  '•  amicable  compounders," 

verdict  on  view, 

inferences  from  experience,  . 


21 

22 

04 

65 

338 

386 

9 

2 

10 

2 

10,  11 

2,  3 

16 

9 

17 

10 

17 

11 

17 

12 

18 

14 

19 

16 

19 

17 

20 

18 

24-26 

24-26 

49 

38 

36 

36 

50 

38 

50,  53 

39,42 

7,  153 

49,  155 

83 

85 

284 

332 

284 

332 

6.605 

335,  817 

INDEX. 


JURY  (Continued). 

referred  by  Judge  to  argument  of  counsel, 
may  be  cautioned  against  false  sympathy, 
may  be  urged  to  agree, 
applying  for  additional  instruction, 
personal  knowledge  of;  instruction, 
objection  to  deposition  referred  to, 
referring  written  instruments  to,   . 
sending  de])Ositions,  &c.,  to  room  of,     . 
to  judge  of  the  materiality  of  evidence, 
to  judge  of  the  sufficiency  of  evidence, 
obligation  to  obey  instruction  in  criminal  case, 
See  special  topics. 

JUSTICE  of  the  peace ;  jurisdiction, 

JUSTIFICATION  by  authority,     . 


779 

PAQE 

SECTION 

.  292 

340 

.  299 

347 

.  299 

348 

.  336 

382 

.  418 

491 

.  418 

493 

.  419 

494 

.  418 

492 

.  424 

499 

.  425 

501,  502 

36,   .  293 

341 

.   21 

22 

.  130 

146 

K. 

KNOWLEDGE,  personal,  of  jury, 

of  defects, 

of  violations  of  conditions  in  deed, 

of  claim  of  ownership, 

of  payment  of  hills  of  exchange, , 

of  person  by  witness,    . 

of  mischievous  disposition  of  dog, 

of  hazards  of  employment,  . 

and  assent  of  grantee  in  deed, 

personal,  of  jury  ;  instruction, 


24-26 

24  26 

113 

127 

113 

127 

113 

127 

113 

128 

.  114 

128 

114 

128 

114 

l::d 

152 

155 

.  418 

491 

LABOR  defective  under  contract,  acceptance  of,     . 

LADING,  bill  of;  mistake, 

LAND  claim  ;  abandonment,  .... 

sale,  whether  by  the  acre  or  gross, 

for  schools,  reservation  of,    .         .         .         . 

identity  of, 125 

of  estate,  authority  of  widow  to  sell,    • 

time  for  purchase  of,  where  no  time  prescribed, 
but  possession  taken, 

imperfectly  described  ;  identification,   . 

indefinite  description 14: 

passing  at  sheriff's  sale,  extent  of,         .         .         . 

description  of,  in  will, 

in  sheriff's  advertisement, 

encroachment  on,  by  stream  obstructed  by  wharf, 

relative  situation, 

shifting  of  state  wan'ant  on,  .... 

improvements, 


178 

201 

93 

96 

489 

609 

59 

54 

109 

120 

125 

139 

134 

149 

128 

151 

141 

152 

150 

152, 153 

144 

152 

145 

152 

145 

152 

145 

152 

146 

152 

147 

152 

147 

152 

780 


INDEX. 


PAGE 

LAND  (Continued). 

unsurveyed,  variation  in  location  of,      .         .        .  147 

identity  and  possession,        .....  150 

old  contract  for  sale  of,          .....  150 

administrator's  sale  of,  .         .         .         .         .         .  154 

sale  of;  issue  in  reforming  contract,     .         .        .  154 

trustee's  purchase  of, 154 

patent  for, 159 

purpose  of  joint  occupation,          ....  165 

wife's ;  occupation  by  husband,     ....  166 

joint  purchase, 172 

and  personal  property ;  mixed  sale,      .         .         .  177 
dependent  or  independent  obligation  to  convey,    .  189 
fraudulent  representations  as  to  quality,        .         .  249 
contract  for  sale,  (see  Fbaud  IN  Con- 
veyances,)       250 

damages  for  failure  to  convey,  ....  272 
what  included  in  mortgage  of,       .         .         .         ,60 

government ;   fraudulent  entry,     ....  250 

particular,  whether  deed  embraces,       .        .         .  125 

LANDLORD  ;  intention  to  evict  tenant,         .         ,         .  105 

or  tenant,  which  money  loaned  to,  .  .  .  105 
acquiescence  in  tenant  holding  over,     .         .         .155 

LANGUAGE,  strong,  in  charge, 360 

clear,  in  instruction,      ......  363 

technical ;   obscurity,    ......  368 

double  construction  of,  in  instruction,  .         .         .  369 

LAPSE  of  time  ;  presumption  of  payment,   .         .         .  190 

of  time  in  question  of  abandonment,    .         .         .  101 

LATENT  ambiguity  in  deed 150 

LATERAL  railroad  laws,  necessity  under,     .         .        .  263 

LAW,  foreign ;   construction  and  effect 283 

questions  under,     ....  34, 64 

for  court, 9 

and  fact,  (see  special  topics,)  .         .         .        17, 358 

of  other  states  of  the  Union,         ....  65 

mining, 65 

payment  in,  ........  185 

effect  of  erroneous  submission  to  jury,          .         .  19 

instruction  must  apply, 287 

instruction  must  be  confined  to,  .  .  .  .  288 
indefinite  reading  of,  not  instruction,  .  .  288-290 
policy  of;  effect  of  expression  of  adverse  opinion 

of  judge,  .    _ .    .    ;         •   ,     . 
entire,  not  requisite  in  instruction, 

See  special  topics. 

LEASE;  delivery;  instruction, 

possession,     ......... 

reservation 

good  faith  o^ 


292 
848 

481 

161 

62 

104 


152 
155 
155 
157 
158 
159 
165 
171 
172 
188 
198 
228 
264 

285 
312 
58 
285 
139 

112 
113 
166 

414 
417 
422 
424 

231 
101 

155 

294 

331 

34,64 

2 

13,412 

67 

69 

218 

17 

336 

337 

338 

341 
403 

598 

168 

62 

108 


INDEX. 

PAGE 

LEGAL  effect  of  instrument  explained,           .         .         .  349 

of  single  fact  explained 349 

discretion,     .......  15,  18 

jurisdiction,  ........  64 

terms,  .         .         .         .         .         .         .         •         .  /3 

whether  municipal  ordinances  are,        ...  67 

sufficiency  of  notice 115 

provocation  ;   "  time  to  cool,"  (see  PROVOCATION,)  140 

effect  and  construction  of  deeds,  ....  148 

establishment  of  road  ;   documentary  proof,           .  284 

and  constructive  notice,         .         .         .         .         •  118 

LEGATEE,  ratification  of  will  by, 161 

LETTEES  of  administration,  character  of,     .      _  .         .62 

reasonable  time  for  taking  out,  136 

LEVY,  excessive 151 

LIABILITY  for  use  and  occupation  under  sale  set  aside,     165 

official 269 

public, 268 

of  innkeepers, 93 

joint, 87 

partnership, 91 

LIBEL  and  slander ;  definition  of  words,  (see  Slander,)       75 

LIFE,  pecuniary  value  of, 272 

LIMITATION  period,  drip  of  eaves  during,  .         .         .170 

new  promise, 88 

on  construction  of  contract  by  court,    ...       81 
LIMITS  of  state,    .        .        .        .        .        .        .        .147 

to  presumption  of  correctness  in  proceedings,       .     534 

LINE  (division) ;  location, 146 

LOAN  or  gift;  intention, 106 

of  money  by  wife, 166 

LOCATION  of  division  line,  _  .  .  .  .  .146 
of  unsurveyed  lands ;  variation,  ....  147 
of  way,  .         ...         .         .         .        ,.         .147 

of  public  corporation, 147 

LOCO  FABENTIS;  exeess{\ei>nmshment,  .        .     266 

LOSS  of  instrument;  evidence 62,284 

presumption  of,  in  marine  insurance,     .         .         .     206 

preliminary  proof, 209 

of  goods  in  transitu  under  insurance,  .         .         .     206 

LOST  deed ;  contents,  .     _ 149 

presumed  existence  of,      .         .         .         .     150 

LOTS  ;  fraudulent  auction  sale, 250 

included  in  original  Mexican  grant,       .        .        .     146 


781 


404 

404 

8,  14 

65 

77 

71 

129 

151 

154 

331 

129 

167 

61 

151 

155 

170 

303 

302 

96 

89 

94 

77 

310 

183 

90 

85 

152 

671 

152 

115 

172 

152 

152 

152 

152 

298 

63,331 

243 

249 

243 

154 

155 

285 

152 


7S2 


INDEX. 


M 


MALICE, 

in  murder,     .        .         .        • 

in  iniblished  statement, 

in  slander,     .... 

and  probable  cause, 

in  issuin<^  warrant, 

in  trespass,    .... 

in  punisbment  by  master  of  a  ship, 
MALICIOUS  prosecution, 

instructions, 
MANDAMUS  in  regard  to  exceptions, 
MARINE  insurance  ;    unseaworthiness, 

presumption  of  loss, 

MATERIALITY  of  fact  in  perjury, 

of  evidence  for  jury,  (.see  Evidence,) 

MATERIALS,  whether  furnished  on  credit  of  contr 
or  builder, 

MATTERS  of  privilege  in  slander, 

MEANIXG  of  "  cash  notes," 

of  a  witness,  .         .         . 

of  spoken  and  written  words, 

MEASURE  of  damages  in  trespass, 

MEMBERSHIP  in  trade  association, 

MERCHANDISE,  articles  of,  under  insurance, 

MESNE  conveyances,  validity  and  effect  of, 

"  MET  together,"  meaning  of, 

MEXICAN  grant,  lot  included  in,  . 

MILITARY  authority,  (see  Authority,) 

MILL  privileges  ;  interference, 

reasonable  use  of  stream  bj', 
wheel,  use  of,  by  prescriptive  right, 
owner, 

MINERS  ;  negligence  in  prosecuting  water  claims 

MINING  laws 

MINOR ;   disaffirmance,  .         . 

ratification  ;   instruction, 

necessaries,  .... 

son,  damages  for  death  of,     . 
MISCONDUCT,  in  insurance, 

criminal,  of  agent ;  insurance, 
MISCHIEVOUS  disposition  of  dog,  knowledge  of, 

MISDESCRIPTION  of  note  in  mortgage, 
of  properly  in  insurance, 


PAGE 

8ECTIOS 

254, 255 

289 

,291 

461,474 

289, 
555 

291, 
577 

.  257 

291 

.  257 

291 

257-200 

291 

.  256 

291 

.  257 

291 

.-  255 

290 

.  257 

291 

.  477 

590 

656,  657 

895 

.  202 

234 

.  206 

243 

54,  284 

44 

,331 

.  424 

499 

tor 
.  106 

114 

.   78 

80 

.  188 

225 

.  283 

330 

.   69 

75 

.  257 

291 

.  276 

322 

.  206 

242 

.  149 

154 

.   73 

77 

.  146 

152 

.  131 

147 

.  150 

155 

.  207 

301 

.  169 

178 

.  148 

153 

.  235 

273 

.   65 

69 

140, 154 

151 

,158 

.  491 

614 

.  261 

293 

.  276 

323 

.  206 

244 

.  207 

245 

.  114 

128 

.  119 

130 

.  201 

234 

INDEX. 


783 


MISNOMER 

MISREPRESENTATION  as  to  insurance  policy, 

See  Insurance. 
MISTAKE  in  bill  of  lading 

in  deed  ;   reforming,      .... 

MITIGATION  in  slander,      .... 

MIXED  questions  for  jury,    .... 

instruction,         ... 

MODE  of  presenting  modifications  of  instruction, 

of  taking  exceptions,     .... 

of  jjrepariiig  bill  of  exceptions,     . 
MODIFICATION  of  instruction  must  be  pertinent 

of  instruction  must  not  be  misleading, 
by  withdrawal,    .... 
authority  of  court  in, 
explanatory  and  counteracting,  . 

of  correct  requests,        .... 

of  general  rule  of  law, 

and  explanation  in  writing,  .         .         . 
MONEY,  lawful 

loaned,  whether  to  landlord  or  tenant, 

loaned  by  wife, 

MONUMENT  stake  in  deed 

courses  and  distance  in  absence  of, 
"MORE  OR  LESS,"  in  contract, 
MOR'I  GAGE  by  absolute  conveyance ;  intention, 

of  real  estate,  what  included, 

intention, 

misdescription  of  note, 

execution  and  acknowledgment,    . 

chattel;  reservation,     .... 

construed  in  every  clause, 

debt;  part-payment 

waiver  in  foreclosure,    .... 

excessive ;  good  faith,  .... 
MOTION,  court  not  set  aside  verdict  on  own, 
MULTIPLICITY  of  instructions,   . 
MUNICIPAL  corporations  obstructing  street, 

accepting  dedication, 

ordinances,  legality  of, . 
MURDER,  malice  in 

identity  of  body, ..... 


PAGB 

269,  585 
196-198 

93 
149 

78 

10 

358 

330 

631  et  seq. 
636  et  seq. 
330,331 
331 
337 
325 
329 
329 
331 
329 

64 
105 
166 
146 
146 
175 

60 

60 
102 
119 
149 
149 
152 
187 
111 
155 

16 
475 
212 
157 

67 
245,  246 
.  124 


SECTION 

304, 774 
234 

96 
154 

80 

2 

412 

371 

868  et  seq. 
888  et  seq. 
372,  374 
373 
385 
368 
369 
368 
375 
370 

66 
113 
172 
152 
152 
192 

57 

58 
105 
130 
154 
154 
155 
221 
124 
161 
8 
580 
253 
163 

71 

289-291 

138 


NAMES;  identity, 
NATURE  of  action  for  court, 
of  instructions, 


N. 


119, 121 
9 

.    287 


133, 134 

1 

336 


784 


INDEX. 


PAGE 

SECTION 

NECESSARIES  to  minor,     . 

261 

293 

NECESSARY  noise  of  railroad,    . 

231 

265 

NECESSITY  of  culvert  in  right  of  way, 

263 

294 

under  lateral  railroad  laws,  . 

263 

294 

NEGLIGENCE  in  insurance. 

206 

244 

by  railroad 

215 

258 

in  gratuitous  bailment, 

216 

259 

in  necessary  precaution. 

*.     21*6-218 

260 

in  constructing  railroad. 

.      219 

,220 

260,  261 

in  sidewalk 

. 

221 

261 

contributory,         ....       2 

21-225,  228 

,229 

263, 265 

of  guest, 

. 

225 

263 

as  to  elevator 

>        .         . 

225 

263 

as  to  cattle  guards  of  railroad. 

>        .        . 

225 

263 

as  to  repairs  by  railroad, 

.        . 

225 

263 

of  ownci"  of  cattle. 

.        .        . 

225 

263 

of  warehousemen, 

.         .        . 

225 

263 

in  private  accidents. 

.        .        . 

225 

263 

positive  or  absolute, 

.        •        • 

226 

264 

of  agricultural  society, 

.        • 

227 

264 

iroof, 

aw  and  fact,          .... 

.     227 

,230 

265  • 

227 

265 

providing  safeguards  on  railroad. 

.*     228 

,229 

265 

as  to  damaged  goods,    . 

•         .         . 

229 

265 

as  to  damaged  animals, 

. 

229 

265 

■  as  to  obstruction  of  railroad  track. 

,        ,         , 

231 

265 

in  seamanship,      .... 

.     231 

,232 

266 

of  sheriff, 

.        .        . 

232 

266 

in  removing  sunken  vessels, . 

. 

233 

266 

of  town  as  to  hijjhways  or  sidewalks. 

.        .        • 

233 

267 

contributory,  in  ways,   . 

.        . 

233 

267 

as  to  fires, 

>        .        . 

233 

268 

as  to  promissory  notes, 

. 

233 

269 

m  msurance,         .... 

.         .        . 

235 

270 

of  officer  in  an  escape. 

.        .        • 

235 

271 

as  to  examining  title,    . 

,        ,        . 

235 

272,275 

of  miners  in  prosecuting  water  claim, 

. 

235 

273 

in  foreclosing  chattel  mortgage,     . 

. 

235 

274 

in  not  slaughtering  hogs. 

236 

276 

private ;  instruction,     . 

'.     478, 480 

593,  595 

as  to  chattel  mortgage  ;  instruction. 

. 

481 

596 

NEW  promise,  in  statute  of  limitations  or  ba 

nkruptcy,  . 

88 

90 

trial,  as  correcting  verdict,    . 

. 

12 

4 

when  and  how  obtained. 

.  679  et  seq. 

758  et  seq. 

how  regarded  in  different  courts. 

. 

578 

757 

NOISE  of  railroad,         .... 

« 

231 

265 

NON-PRODUCTION  of  writing, . 

.        . 

285 

332 

NONSUIT,  right  to,  in  trial  by  court,     . 

21 

23 

where  plaintiff's  evidence  fails, 

.        .        . 

442 

530 

granting,  not  reviewable, 

.        .        . 

587 

776 

exception  to  this,  .... 

. 

629 

861 

INDEX. 


785 


XOTES,  treasury,  stolen  ;  identity, 

See  Promissory  Notes,  ai 

MOTICE  of  unrecorded  deed, 

legal  and  constructive,  . 

legnl  sufficiency,    .... 

of  dishonor,  {'see  Promissory  Note,) 

to  subsequent  purchaser, 

of  want  of  authority  to  negotiate  bill  of 

printed  on  contract, 

of  dissolution  of  partnership, 

of  us;ig3  of  guests  at  inns,    . 

of  purchase  of  note,  . 
NOVATION,  discharge  by,  . 
aS  oISANCE  in  highways, 

by  dam  and  flowage, 

instruction,    .        .  .        , 


PAGB 

SECTIOir 

.    . 

. 

119 

132 

id  Mortgage. 

. 

150 

155 

,   , 

118 

129 

,   , 

115 

129 

, 

115 

129 

,   , 

117 

129 

f  exchange. 

117 

129 

,    . 

. 

117 

129 

,    , 

, 

118 

129 

,    , 

^ 

118 

129 

. 

. 

118 

129 

,    , 

184 

,185 

217 

,    , 

, 

213 

255 

,    , 

, 

214 

257 

,    , 

, 

489 

612 

o. 

OBJECTION  to  juror  after  trial,   . 

to  claim  under  award,  .... 
to  deposition  referred  to  jury,  .  . 
to  pleadings  not  raised  by  instructions, 

to  evidence, 534, 

to  i;uling  which  becomes  immaterial,     . 
must  be  to  material  matters, 
to  generality  of  instructions, 
to  error  cured  by  verdict, 

must  be  made  in  court  below,        .         .         .  539  et 
See  Bill  of  Exceptions,  Evidence,  Exceptions, 
Matters,  Judicial  Discretion,  Presumption, 
special  topics. 

OBLIGATION  to  convey  lands,  dependent  or  indepen- 
dent,   

OBSCURITY,  a  ground  for  refusing  instruction,    .      321, 

of  technical  language  in  charge,    .... 

by  verbosity, 

OBSTRUCTION  to  water-course, 

of  public  street  by  cars 

by  municipality,    .... 
See  HicnwAYS,  and  Sidewalks. 

on  railroad  track  ;   negligence,       .... 

in  highway,  reasonable  time  for  leaving, 
OCCUPANT  in  adverse  possession,  declarations  of, 

OCCUPATION,  liability  for,  under  sale,  set  aside, 

of  wife's  land  by  husband, 

joint,  purpose  of, 

50 


49 

37 

272 

311 

418 

493 

298 

345 

( 

672,  673, 

536 

1 

678, 679 

535 

675 

536 

676 

536 

677 

536 

677 

seq. 

683  et  seq. 

Incidental 

Ruling, 

and 

189 

228 

363 

362,417 

368 

422 

369 

423 

211 

251 

212 

252 

212 

253 

231 

265 

140 

151 

169 

179 

165 

170 

166 

172 

165 

171 

786 


INDEX. 


FAOE 

OFFICER,  assault  on, 270 

trespass  of,   .......         .  271 

negligence  of,  in  escape, 235 

OFFICIAL  liability 269 

breach  of  duty  ;  damages, 276 

OMISSION    of    instruction    where    no    particular    re- 
quest  298,324,344,370 

of  prisoner  to  make  statement ;  instruction,          .  465 

OPINION  of  court,  verdict  not  subject  to,     .         .         .  14 

extrajudicial,  of  jury, 17 

of  judge  on  facts, 20 

against  policy  of  the  law,  expressed  in  a 
charge 

ORAL  and  written  requests  and  instructions,  .      312-320 

remark  of  judge  concerning  instruction  sua  motu,     364 
ORDER  of  sale  by  Orphans'  Court ;  validity, 

as  payment, 

indefinite  time  of  payment,  . 
ORDINANCES,  municipal ;  legality,     . 
ORGANIZATION  of  county, 
ORPHANS'  COURT  ;  validity  of  order  of  sale, 
OUSTER  of  co-tenant;  intention, 

of  heirs  of  co-tenant,   . 

OUTLOTS, 

OWNER  of  cattle  ;  negligence,     . 

of  promissory  note, 
OWNERSHIP,  knowledge  of  claim  to, 


292 


.  175 

.  186 

.  139 

.  67 

.  276 

.  175 

.  102 

.  168 

73, 142 

.  226 

.  181 

.  113 


8ECTI0IC 

3Jj 
309 
271 
30» 
323 

316,  366, 

395, 425 

562 

6 

12 

19 

')V 

359 
418 
193 
221 
151 
71 

nso 

193 
104 

175 
77,  152 
263 
211 
127 


PARENTAL  duty, 

PAROL  contracts ;  interpretation, 

arbitration ;  submission, 
PARTIAL  request  for  instruction,  . 
PARTICULAR  words  and  phrases,  meaning  of, 

land,  whether  deed  embraces, 

weight  of  testimony, 
PARTIES,  tender  between,    . 

capacity  to  contract, 

identity  of,   . 

right  of  excepting  confined 
PARTITION,  part-payment  in, 
PARTNERSHIP,  . 

property, 

liability, 

notice  of  dissolution,     . 

Bale  ;  title  of  dissenting  part 


o, 


ner, 


265 

298 

84 

SB 

107 

117 

307 

354 

71 

76 

125 

139 

280 

327 

69 

74 

78 

81 

120 

134 

508 

633 

187 

223 

90 

92 

90 

93 

91 

94 

118 

129 

172 

187 

INDEX. 


78T 


PART-  PERFORMANCE  ;  waiver  by  acceptance, 

PARTY,  inference  from  silence  of,  ...      J 

affected  may  request  modification  of  instruction, 
cannot  comi)lain  of  own  instruction, 

PARTY'S  own  witness  ;  instruction  as  to  credibility, 

PATENT  for  inventions, 

specifications, 

questions  ;  general  rule, 

rijjht ;   surrender  by  inventor, 

for  land,        .... 

reasonalile  time  for  disclaiming, 

identity  of  articles  under, 
PAUPER  supplies, 
PAYING  bounties,  authority  for,  . 
PAYMENT;   appropriation,  . 

of  school  funds  ;  intention,  . 

of  bills,  knowledjje  of,  . 

of  order,  indefinite  time  for, 

in  part,  by  sale  of  chattels,  . 

of  judgment, 

in  law,  .... 

or  purchase  of  judgment, 

agreement  to  extend  time,     . 

of  accepted  oi'der, 

of  stock,  on  subscription  or  not, 

in  part  of  mortgage  debt, 

by  note  of  third  person,  voluntary  or  compulsory, 

in  bankruptcy,  whether  by  mistake, 

in  part  in  partition,       .... 

for  whom  made, 

under  condition  for  release,  . 

proof  of,  as  to  relation  between  parties, 

presumption  from  lapse  of  time,    . 
from  facts, 

unreasonable  and  vexatious  delay, 

of  account  by  promissory  note,     . 

PERFORMANCE  of  contract,       .        .        . 

reasonable  time, 

of  voyage  under  agreement ;  reasonable  time, 

and  acct'ptance  of  work, 
PERJURY,  materiality,  .... 

PERMISSIVE  right  of  way, 
PERSOX,  knowledge  of,  by  witness, 
PERSONAL  knowledge  of  jury  ;  instruction, 

property  ;   intention  of  testator,    . 

knowledge  of  jury  as  to  facts,  witnesses,  &c, 
PHYSICIAN  ;  reasonable  care  and  skill, 
PLEA,  striking  out,  after  evidence, 

judgment  on,  after  verdict,    . 


PAGE 

BECTIOIT 

.   Ill 

124 

»69,  285 

304,  332 

.  331 

375 

.  344 

395 

.  417 

490 

.  157 

164 

.  157 

164 

.  158 

164 

.  158 

164 

.  159 

165 

.  136 

151 

.  122 

136 

.  268 

302 

.  134 

147 

.  104 

110 

.  109 

121 

.  113 

128 

.  139 

151 

.  172 

187 

.  184 

219 

.  185 

218 

.  185 

219 

.  186 

220 

.  186 

221 

.  186 

221 

.  187 

221 

r,     187 

221 

.  187 

222 

.  187 

223 

.  187 

224 

.  188 

226 

.  189 

227 

.  190 

231 

.  192 

231 

.  138 

151 

.  183 

217 

.   85 

86 

.  136 

151 

.  137 

151 

.  263 

295 

54,  284 

44, 331 

.  169 

177 

.  114 

128 

.  418 

491 

.  102 

102 

24-26 

24-26 

.  216 

215 

.   13 

5 

.   14 

5 

7"8'8 


INDEX. 


PAGE 
9 

298 
346 
478 
629,  630 
292 


PLEADINGS  for  court,  .        .        .        . 

objection  to,  not  raised  by  instruction,  . 

amendment  of,  as  to  instruction,    . 

instructions  as  to, 

exceptions  as  to,   . 
POLICY  of  the  law,  adverse  opinion  to,  of  judge, 

POSSESSION;  abandonment 100 

adverse;  intention,        ......  102 

under  a  will,  intention  of  taking 102 

and  identity  of  land,     ......  150 

presumption  of  title, 150 

under  lease, 161 

constructive  and  actual,         .         .        .         .         .  163 

adverse,        . 166 

by  town 168 

adverse ;  declarations  of  occupant,        .        .         .169 

colorable  or  actual,        ......  169 

actual,  or  as  trustees  of  a  corporation,  .         .         .170 

under  conveyance  by  tenant  in  common,       .         .  170* 

after  assitrnment  to  creditor,          ....  172 

of  vendor  after  sale, 243 

delivery  of,  under  voluntary  assignment,       .         .  252 

PRACTICE   in  appellate  courts  on  bills  of  exception, 

(see  below,)        ......      658-667 

how  bills  sent  up  with  record,       ....  658 

assignment  of  errors,    .....      658,  659 

effect  of  confused  record,       .....  659 

evidence  of  title, 659 

construction  of  references  in  bill,  ....  660 
amendment  of  bills,      .....      660-663 
on  judge's  refusal  to  sign  bill,       ....  663 
on  petition  to  establish  truth  of  disallowed  excep- 
tions,           663 

bill  as  demurrer  to  evidence,         ....  663 

foundation  of  suit  in  bill 663 

as  to  setting  out  rules  of  court,    ....  664 

roll  of  attorneys,         .         .         .  664 

as  to  irregular  or  fraudulent  bills,          .         .         .  664 

as  to  supplying  papers  filed  with  bill,    .         .         .  664 

defects  in  bill,       ....  665 

as  to  abandonment  of  exceptions,          .         .         .  665 

as  to  entry  of  final  judgment  pending  exceptions,  666 

as  to  remittitur, 666 

as  to  governor's  proclamations  and  pardons,          .  666 


as  to  implied  exceptions, 

as  to  collateral  questions, 
PRAYER.     See  Requests. 
PRECAUTIONS  by  railroads, 

against  steamboat  collisions, 
PRECISE  definition  in  instruction, 
PREFERENCE  of  creditors  in  voluntary  assignment. 


666 
.    667 

216-218,  220,  228,  229 

.     221 

.     365 

251 


SECTION 
1 

845 
399 
592 

862, 866 
341 

101 
104 
104 
155 
155 
168 
169 
174 
176 
179 
170 
179 
180 
189 
281 
288 

898-915 
898 
899 
899 
900 
901 
902 
903 

904 
905 
906 
907 
907 
908 
909 
909 
910 
911 
912 
913 
914 
915 

260, 265 
262 
422 
288 


INDEX.  '^^89 

PAOK  8ECTIOI4 

PREMATURE  bills  of  exception 505  724 

PRESCRIPTIV^E  title,  existence  of,       ...         .     155  162 

light  to  use  mill-wheel,         .....     169  178 

title ;   relinquishment,  ......     170  182 

PRESENTING  bill  or  sij]:ht  draft ;  time,       .         .         .140  151 

instructions  or  modifications.         .         .         .      330,375  371,432 

PRESUMPTION  as  to  alteration  of  promissory  notes,  .     179  205 

as  to  existence  of  lost  deeds,         ....     150  155 

that  jury  understand  and  conform  to  instructions,       20  18 

of  title  from  possession, 150  155 

of  conveyance, 151  155 

of  payment  from  lapse  of  time,     ....     190  231 

from  facts, 192  231 

of  loss  in  marine  insurance, 206  243 

against  fraud  in  voluntary  conveyance,          .         .     251  288 

of  correctness,  limits  to,        ....         .     531  671 

as  to  instructions,  where  excepted  to,    .         .      617,619  843,846 
See  Bill  of  Exceptions,  Evidence,  Exceptions,  Incidental 
Matters,   Instructions,    Judicial  Discretion,   Objection, 
Ruling,  and  special  topics. 

PRINCIPAL  or  surety  on  promissory  note,   .         .         .     179       .  204 

and  agent, 128  146 

ratification, 102,  130  103, 146 

PRISONER,  reasonable  time  for  trying,         .         .        .140  151 

right  to  further  instruction, 338  386 

omission  to  make  statement,          ....     465  562 

PRIVATE  negligence;  instructions,       .         .         .      478,480  593,594 

trust,  discharge  of, 273  314 

arbiter,  decision  of, 270  304 

ways ;   user, 157  163 

PRIVILEGE  of  water, 73  77 

matters  of,  in  slander 77,  257  79,  291 

mill,  interference  with, 150  155 

PRIVILEGED  communication  by  client,        ...       74  77 

PROBABLE  cause, 255, 257-260 .  291 

PROCEEDINGS,  judicial .269  304 

See  JuDicuL  Discretion. 

PROCESS, 34    ■  35 

PRCMISSORY  NOTE,  release  of,  in  voluntary  assign- 
ment,              252  288 

negligencp, 233  269 

ambiguity  in ISO  230 

whether  property  or  security,        .         .        .         .178  203 

whether  signer  principal  or  surety,         .         .         .     179  204 

presumpt.jon  as  to  alteration,         ....     179  205 

distinct  consideration, 179  206 

proof  of  I'ailure  of  consideration,  ....     180  207 

corporation  as  surety  or  accommodation  indorser,      180  208 

value  of  bank  notes  in  payment,  ....     180  209 


TOO 


INDEX. 


PROMISSORY  NOTE  (Continued). 

holder  and  owner, 

agreement  to  discharge  indorser, 

protest  and  notice  of  dishonor,  [see  below,) 

whether  receipt  includes, 

renewals  of,  . 

payment  of  account  by, 

satisfaction  or  collateral  security, 

notice  to  purchaser  of, 

notice  of  dishonor,  {see  above,) 

indorsement, 

construction  of,  . 
PROOF  of  written  contract, 

execution  of  deed, 

negligence,    .... 

preponderance  of, 
PROPER  repetitions,     . 


request  for  instruction  may  sometimes  be  refused,     344 


ligence. 


PROPERTY  in  insurance,  misdescription  of, 

levied  on,  sale  of,  ... 

reasonable  time, 

defence  of  protection  of,  in  assault, 

intention  of  delivery,    . 
PROSECUTION,  malicious,  . 
"  PROSTITU'l  ION,"  meaning  of,  . 
PROVING  truth  of  disallowed  exceptions, 
PROVOCATION;  " time  to  cool," 
PUBLIC  CARRIERS  ;  instruction  as  to  neg! 
"  PUBLIC  LANDING,"  meaning  of,     . 
PUBLIC  policy,  grounds  of,  . 

in  regard  to  contract,    . 

corporation;  location,  . 

street,  obstruction  by  cars,    . 

by  municipality, 

liability 

"  PUBLIC  USE,"  meaning  of, 
PUBLISHED  statement;  malice,. 
PUNISHMENT,  excessive,  by  one  in  loco  parentis. 

by  shipmaster;  malice, 
PURCHASE,  fraudulent  design  in, 

or  sale,  intention  of,      . 

of  land;  time  under  contract, 
by  trustee, 

pint,  of  land,        .         .         .         , 

or  payment,  of  judgment,     . 

bona  Jide,  for  value, 
PURCHASER,  subsequent;  notice, 


PAGE 

.  181 

.  1S2 

.  182 

.  182 

.  183 

.  183 

.  187 

.  118 

.  115 

.  128 

.  80 

.  85 

.  148 
227,  230 

.  280 

.  337 


.  201 

.  171 

.  140 

.  ]()6 

.  104 

.  257 
75 

653-656 
140,  255 

.  480 

.  73 
75 

.  81 

.  147 

.  212 

.  212 

.  268 

.  73 

.  257 

.  2G6 

.  255 

.  98 

.  102 

.  138 

.  154 

.  172 

.'  185 

.  172 

.  317 


SECTION 

211 
212 
213 
214 
215 
217 
221 
129 
129 
146 
83 
86 
154 
265 
327 
384 
394 
234 
185 
151 
173 
107 
291 

ri 

892 

151,289 

595 

77 

77 
84 
152 
252 
253 
302 
77 
291 
298 
290 
100 
105 
151 
159 
188 
219 
186 
129 


INDEX.  791 


Q. 


FAGB 

SECTION 

378 

437 

435 

518 

QUALIFYING  contradictory  instructions, 

QUANTUM  MERUIT, 

UUESTIONS  of  law  and  fact.     See  special  topics. 


R. 

RATIFICATION  bv  principal, 130  146 

intention,         .        .        .102  103 

of  will  by  legatee, 161  167 

by  minor ;  instruction, 491  614 

'*  READINESS  and  willingness  to  pay,"  meaning  of,    .       74  77 
READING  the  law  not  instructing,        .         .       288-290,  296  338  et  s.,  343 

REAL  estate ;  administrator's  sale,        ....     154  157 

and  personal  property  ;  delivery  under  mixed  sale,    177  198 
REASONS  for  decision  below  not  considered  by  appel- 
late court,          .......     518  656 

REASONABLE  doubt ;  instruction,      .        .  471  et  seq.,  474  572  et  s.,  579 

efforts  of  agent  to  effect  sales,       ....     173  191 

skill  and  care  by  physicians,          ....     216  258 

use  of  highway 221  261 

of  water-course, 215,267  258,301 

time, 135  151 

for  disclaiming  in  patent,        .         .         .         .136  151 

for  accepting  trust  in  bankruptcy,           .         .     136  151 

for  performing  contract,          .         .         .         .136  151 

voyage  under  agreement,         .     136  151 

for  presenting  drafts  or  bill  of  exchange,        .     139  151 

for  disaflBrming  sale  of  consignor,          .         .     140  151 

voidable  deed  by  minor,         .     140  151 

in  an  award, 140  151 

in  selling  property  under  levy,       .         .        .     140  151 

for  trying  prisoner, 140  151 

to  cool  under  legal  provocation,      .         .      140,  255  151,  289 

for  leaving  obstructions  in  highway,       .         .     140  151 

for  taking  out  trespassing  animals,         .         .     141  151 

in  foreclosing  chattel  mortgage,      .         .         .     235  274 
intendment  in  favor  of  bill  of  exceptions,   519,  523-528  657,661-665 

REASONABLENESS  of  railroad  regulations,       .        .      66  70 

RECEIPT  for  deed, 59  55 

of  guardian,          .         .  ^ 274  318 

whether  it  includes  promissory  note,     .        .         .     182  214 

RECORD,  date  of, 57  50 

of  judgment;  error, 276  321 

REFERENCE  to  jury  of  objection  to  deposition,           .     418  493 

of  written  instruments,       .         .     418  494 


792 


INDEX. 


PAGE  SECTION 

REFERRING  jury  to  argument  of  counsel,  .         .         .292  345 

REFORMATION  of  contract  for  sale  of  land,       .         .     154  158 

of  instrument 270  304 

of  mistake  in  deed, 149  154 

REFUSAL  to  <Trant  review,  when  exceptionable,    .         .     592  787 

to  give  instructions 320  et  seq.  360-365 

must  not  be  arbitrary,      .         .         .     320  361 

obscurity  a  ground  for,    .         .         .     321  362 

or  not,     .     ^ 323  363 

series  in  United  States  courts,          .     324  364 
for  incorrectness   or  inappropriate- 

ness, 324  365 

effects, 324  365 

error  of,  cured,        ....     325  367 

discretion  of  court,           .         .         .     325  368 

of  repetitions  in  instructing,          .         .         .         .     334  379 
to  grant  a  proper  request  not  necessarily  ground 

of  reversal 344  394 

to  instruct  on  point  of  law  so  stated  as  to  include  ^ 

fact, 605  816 

REFUSED    instructions  not  to  be  read  in  hearing  of 

jury 476  585 

See  Instructions. 

REGULATIONS  of  railroads, 66  70 

RELATION  between  parties,  proof  of  payment  as  to,  .     189  227 

of  instruction  to  the  facts,    ....      349,351  405,406 

to  evidence,  •  .         .         •         .  416  et  seq.       487  et  seq. 

RELATIONSHIP  (family) 266  299 

RELATIVE  situation  of  lands 146  152 

RELEASE,  construed  by  court, 80  83 

payment  under  condition  of,          .         .         .         .188  226 

.  of  promissory  note  in  voluntary  assignment,          .     252  288 

RELIGIOUS  corporation,  trustees  of,     ....     273  314 

RELINQUISHMENT  of  prescriptive  title,    ...     170  182 

REMARK  (abstract)  of  judge 325  367 

of  judge  on  testimony  or  bearing  of  witness,        .     359  413 

concerning  instruction  sua  moiu,    .        .     364  419 
See  Instructions. 

REPETITIONS  of  instructions, 332  376, 377 

requisites,     ....     334  378 

refusals,        .         .         .         .334  379 

when  proper,         .         .         .     337  384 

REPLEVIN  without  formal  delivery 177  199 

REPORT  of  master,  auditor,  or  referee ;  exceptions,  626,  627  858 

REPRESENTATIONS  in  sale  of  property;  fraud,      241,243  280 

as  to  quality  of  land;   fraud,          ....     249  284 
See  Insurance. 


INDEX. 


793 


PAGE 

292, 301 
.  298 
305-307, 380 
.  307 
.  309 
.  311 
312-320 
.  331 


grant. 


REQUESTS  for  instruction ;  necessity, 

omission  in  absence  of,    . 
requisites  of,    . 
may  be  partial, 
presenting,       .         . 
obligation  of  the  court  to 
oral  and  written, 
for  modification  of  instruction, 
proper,  whpn  may  be  refused,        ....     344 

in  criminal  cases. 476 

See  Instructions. 

BE  S  AD  JUDICATA, .21 

RESCINDING  agreement,     .         .         .        .         .         .85 

contract  on  the  ground  of  fraud ;  time,        .         .     138 

RESERVATION  in  lease 62 

good  faith,      ....     104 

of  lands  for  schools, 109 

in  chattel  mortgage,      ......     149 

REVENUE  stamps;  cancellation,  .        .         .         .271 

laws;  appraisement  under, 271 

REVERSING  instruction 364 

REVIEW,  refusal  to  grant,  on  petition, ....     592 

REVOCATION  of  will, 160 

intention  of  testator,  .         .         .102 

RIGHT  to  withdraw  or  reverse  instruction,     .         .         .     364 

of  prisoner  to  further  instruction,  .         .         .     338 

of  way  ;  necessity  of  culvert,        ....     263 

permissive  or  adverse,     ....     169 

to  nonsuit  in  trial  by  court,  {see  NONSUIT,)  .       21 

to  interest, 79 

of  excepting  confined  to  parties,   ....     509 
express  and  implied  waiver,      .     511,  518 

RISK,  comparative,  in  bailment, 92 

RIVER,  widening  of, 127 

ROAD,  documentary  proof  of  establishing,    .         .        .     284 

identification  of, 142 

R.  R.  regulations,  reasonableness  of,       .        .        ,        .66 

bond,  intent  of  purchasing, 95 

negligence, 215 

as  to  precautions,         .         .       216-218, 220 
in  constructing,  ....      219,  220 
as  to  cattle  guards,      ....    226 
See  Negligence. 

filling  up  a  ditch, 218 

direct  and  indirect  encroachments  by,  .         .        .     219 

necessary  noise, ,231 

lateral  law,  necessity  of,         ....        .     263 

damages  in  locating, 436 

RULE  as  to  precaution  by  railroads,       .         .         .      228, 229 
as  to  law  and  fact  in  statutory  courts,  ...       17 


SECTION 

342,  351 
346 

352,441 
354 
357 
358 
359 
375 
394 
582 

22 

86 

151 

62 

108 
120 
154 
308 
308 
419 
787 
167 
102 
419 
386 
294 
177 
33 
82 
633 
637-654 
96 
145 
331 
152 

70 
99 

258 

260 

260,261 

263 

260 
260 
265 
294 
521 
265 
11 


794 


INDEX. 


RULE  (Continued). 

as  to  credibility  of  witnesses,         .... 

as  to  charges  on  evidence, 

as  to  directing  verdict,  ..... 

RULING  of  court  excepted  to  at  the  time, 

harmless,  no  basis  of  exception, 
how  set  out  in  bill  of  exceptions, 
before  final  judgment,  the  ground  of 
exception,       ..... 
on  motions,  unless  discretionary,  ex- 
ceptionable,     

on  petition  for  review, 
on  taxation  of  costs,  .... 
See  Bill  of  Exceptions,  Evidence,  Exceptions,  Lncidental 
Matters,   Judicial   Discretion,   Objection,  Presumption, 
and  special  topics. 


AOB 

SBCTI017 

423 

500 

428 

603 

446 

540 

549 

691 

583 

767 

564 

721 

623 

854 

623 

835 

625 

856 

625 

857 

s. 


"  SAFE  and  convenient,"  meaning  of,     . 
SAFETY  of  highways  or  sidewalks, 
SALE,  delivery  under  bill  of, 
or  purchase  ;   intention, 
ordered  by  Orphans'  Court ;  validity, 
and  delivery,         .... 
executed  or  executory, 

contract  of, 

of  property  levied  on,  . 
of  chattels  in  part-payment  of  debt, 
set  aside,  use  and  occupation  under, 
of  lands,  issue  in  reforming  contract  for 
administrator's, 
old  contract  for, 
of  estate  ;  widow's  authority, 
by  gross  or  acre,     . 
by  sheriff;  extent, 
of  consignor,  time  for  disaffirming, 
of  property  levied  on  ;  time, 
time  of  delivery  when  not  specified, 
of  chattels  ;   estopjjel,  . 
absolute  or  conditional, 

fraud, 

See  Fraud. 


SATISFACTION 


assignment  of  account. 
See  Promissory  N 


SCHOOL  funds  ;   intention  of  payment, 
reservation  of  lands  for, 

SCIENCE  and  art,  terms  of,  . 
SEALING  of  instrument. 


OTE, 


.   74 

77 

220, 221 

261 

.  176 

196 

.  102 

.105 

.  175 

193 

.  171 

184 

.  171 

184 

.  171 

184 

.  171 

185 

.  172 

187 

.  165 

170 

.  154 

158 

.  154 

157 

.  150 

155 

.  134 

149 

.   59 

54 

.  144 

152 

.  140 

151 

.  140 

151 

.  139 

151 

.   97 

99 

.  107 

118 

.  100 

100 

185 

109 
109 

81 
58 


217 

121 
120 

83 
52 


INDEX.  '^95 

PAOB  SECTION 

SEAMANSHIP;  negligence 231  266 

SEAWORTHINESS, 202  234 

SEDUCTION 270  306 

SELF-DEFENCE, 260  292 

instruction 450,  463  550,  558 

SEISIN,  covenant  of;  damages  in  breach,      .         .         .     155  160 
SEPARATE   communication   of  juroi'  with   court  not 

allowed 338  386 

SERIES  of  instruction  refused  in  United  States  courts,  .     324  364 

SERVICE,  whether  gratuitous,        .         .         .         .         .     107  '  115 

abandonment  of  contract  of,          .         .         .         .110  123 

SET-OFFS, 190,435,437,483      {  ^5^2V60^0 

items  of,  set  out  by  bill  of  exceptions,           .         .614  833 

SETTING  aside  verdict  on  motion  of  court,  ...       16  8 

SETTLEMENT,  what  accounts  embraced  in,          .        .     104  110 

SHERIFF,  diligence  requhed  of, 232  266 

indefinite  description  in  advertisement  of,      .         .     145  152 

extent  of  land  passing  at  sale  by,          .         .         .     144  152 

SHIFTING  of  state  warrant  on  lands,    .         .         .        .147  152 

SHIPPING-MASTER;  authority,         .        ....     129  146 

SIDEWALKS;  negligence .233  267 

safety  of, 220  261 

SIGNATURE,  disputed 57  51 

SILENCE  of  party,  inference  from,        .        .        .      269, 285  304, 332 

SITUATION  of  lands,  relatively, 146  152 

SKILL  of  physician 216  258 

SLANDER  and  libel,  definition  of  words,      .         .         .75  77 

aggravation  and  mitigation,          .       78  80 

mahce, 2o7  291 

privilege, 257  291 

SPECIFICATION  of  delivery,  indefinite,       .        .        .139  151 

in  patent, 157  164 

SPECIFIC  charge 362  416 

performance,          .......       83  85 

relation  of  instructions  to  evidence,      .         .  416  ef  seq.       487  et  seq. 
exceptions  necessary 557  et  seq.       706  et  seq. 

STAKE  as  monument  in  deed, 146  152 

STAMPS,  revenue;  cancellation, 271  308 

See  Revenue. 

STANDARD  of  duty 266  298 

STATE,  limits  of, 147  152 

warrant,  shifting  on  lands, 147  152 

STATEMENT,  whether  admission  or  ofier  to  compromise,    107  116 

STATUTE  of  limitations ;  new  promise,        ...      88  90 


700 


INDEX. 


STATUTORY  courts  of  special  jurisdiction ;   law 

fact,  .        .        . 

STEAMBOAT  collisions,  precautions  against 

ap])urtenance,        .... 
STOLEN  treasury  notes ;   identitj', 
STREA^I  encroaching  on  land  by  wharf, 

reasonable  use  of,  ... 

STREET  commissioner ;  authority,        . 

intention  to  dedicate,    . 

STRIKING  out  a  plea  after  evidence,     . 
SUBMISSION  of  law  to  jury;  effect,  . 
to  arhitration  by  parol, 

SUBSCRIPTION  stock  ;  payment  or  not, 
SUBSEQUENT  purchaser,  notice  to, 
SUBSTANTIAL    compliance  with   contract, 

words  "  more  or  less  "  are  used  therein, 

SUFFICIENCY  of  evidence, 

of  notice,      ..... 
of  highway,  .... 

SUICIDE, 

SUNDAY,  verdict  on 

SUNKEN  vessel,  negligence  in  removing, 
SUPERSEDEAS  with  bills  of  exception, 
SURETY,  authority  as  agent  of,     . 
instruction  as  to  discharge  of, 

SURVEY;   fraud, 

interpretation,       .... 
variation  of  compass,    .        .        . 


where  the 


FAQB 

and 

.  17 

220,221 

.  74 

.  119 

.  145 

215, 2G7 

.  270 

.  157 

.  13 

.  19 

.  107 

.  186 

.  117 

.  175 

33,426 

.  115 

.  273 

.  459 

.  475 

.  233 

.  500 

.  130 

.  489 

.  250 

.  153 

.  274 


11 

261 
77 
132 
152 
258,  301 
307 
163 

5 

17 
117 

221 
129 

192 

32,  502 
129 
315 
553 
581 
266 
623 
146 
611 

285 
156 
317 


T. 

TAXES  assessed  on  what  tract,      .... 

TECHNICAL  language,  obscurity  of,     . 

TENANCY 

TENANT  holding  over,  and  acquiescence  of  landlord, 
intention  of  landlord  to  evict, 
or  landlord,  which  money  loaned  to, 
in  common,  possession  under  conveyance  by, 

TENDER  in  court  and  between  parties, 

TERMS  construed 

of  art  and  science,         ..... 

legal 

TESTATOR,  capacity  of, 

See  Intention. 


105 

111 

308 

422 

159 

166 

159 

166 

105 

112 

105 

113 

170 

180 

69 

74 

80 

83 

81 

83 

73 

77 

160 

167 

INDEX. 


797 


TESTIMONY;  credibility,     . 

particular  weight,  .         .         . 

of  wife,  ..... 

instruction  to  disregard, 

remarks  of  judge  on,     . 

instructions  stating, 

stating  force  and  effect, 

of  expert;  instruction, 
TIME  when  requests  must  be  presented, 

indefinite,      ..... 

in  contract  for  purchase  of  hr.d, 
for  payment  of  accepted  order, 

indefinite  enlargement  of,  in  contract,   . 

as  to  guarantors, 

of  pajment ;  unreasonable  and  vexatious  di 

to  rescind  contract  for  fraud, 

of  delivery  not  specified  in  sale,    . 

of  execution  and  delivery  of  deed, 

to  cool,  ...... 

lapse  of;  presumption  of  payment, 
in  abandonment,    . 

of  excepting  to  the  rulings  of  the  court,        -i 

of  preparing  bill  of  exceptions,     . 

See  Reasonable  Time. 
TITLE,  color  of,  in  good  faith, 

neglect  in  examining,    . 

of  dissenting  partner  in  sale, 

prescriptive,  .... 

relinquishment  of, 

presumption  of,  from  possession,  . 
TOWN,  neglect  of,  as  to  highways  and  sidewalks. 

possession  by,        .... 

authority  to  pay  bounties, 
TRACT,  taxes  assessed  on,     . 
TRADE,  diversion  of,    . 
TRANSFER  of  property,  liability  in,     . 

of  cause  to  chancery  docket,  exceptions  to, 
TREASURY  notes  (stolen)  ;  identity,    . 
TREES,  ill  highway,  cutting  down, 

damages  in  cutting, 
TRESPASS,  malicious ;  damages, 

of  officer, 

aggravation,  .... 

damages, 

TRUST,  private,  discharge  of,         . 

implied, 

TRUSTEES  of  religious  corporation, 

of  corporation,  possession  by, 

purchase  of  lands  by,    .        .         . 


PAGE 

278 
280 
284 
277 
359 
419 
419 
420 
309 
135 
138 
139 
137 
137 
138 
138 
139 
151 
255 
190 
101 

(  549,561, 
631  et  seq, 

.  636  et  seq. 


lay, 


155 
235 
172 
155 
170 
150 
233 
168 
134 
10^ 
274 

437 
630 

119 
212 
276 
257 
271 
271 
276 
273 
155 
273 
170 
154 


SECTION 

326 
387 
331 
324 
413 
495 
496 
497 
357 
150 
151 
151 
151 
151 
151 
151 
151 
155 
289 
231 
101 
691,716, 

868  et  seq. 

680  et  seq. 

161 
272, 275 
187 
162 
182 
155 
267 
176 
147 
111 
319 
522 
865 
132 
254 
323 
291 
309 
309 
323 
314 
159 
314 
179 
159 


798 


INDEX. 


U. 

PAGE  SECTION 

UNCERTAIN  instructions 3(55  420,421 

UNCERTAINTY  of  injudicious  explanations,         .         .  371  427 
See  Obscurity,  and  Instruction. 

UNCERTAINTY,  deeds  void  for 145  152 

UNCONTROVERTED  or  immaterial  facts,   ...  21  21 

UNREASONABLE  and  vexatious  delay  of  payment,     .  138  151 

UNRECORDED  deed,  notice  of, 150  155 

UNSURVEYED  lands ;  variation  in  location,         .         .  147  152 

USAGE  and  custom, 67  72 

of  guests  at  an  inn,  notice  as  to 118  129 

USE  and  occui):ition  under  sale  set  aside,        .         .         .  165  170 

of  mill-wheel  by  prescriptive  right,       .         .         .  169  178 

of  water-course 215,  267  258,  301 

of  highway, 221  261 

USER  as  dedication, 156  163 

of  private  ways, 157  163 

of  ways ;  instruction 487  606 

USURY 95,193-196  98,232 


V. 

VALIDITY  and  effect  of  mesne  conveyances, 

of  order  of  sale  by  Orphans'  Court, 
VALUE  of  cash  notes,  .... 

of  life, 

VARIANCE 

VARIATION  of  location  in  unsurveyed  lands, 

of  compass  in  survey,    . 
VEXDOR,  fraudulent  possession  by, 
VENUE,  instructions  as  to  change  of,     . 
VERBAL  inaccuracies  in  instruction, 

omissions  in  instruction,  .  . 
VERBOSE  obscurities,  .... 
VERDICT,  character  of,         .         .         . 

on  view  of  jury,    .... 

directing, 

as  to  delivery, 

judge  cannot  amend,     .         . 

new  trial  correcting, 

judgment  on  plea  after, 

not  subject  to  opinion  of  court,     . 

not  set  aside  on  motion  of  court, 

interlocutory,         .... 

actually  rendered,  court  must  receive, 

■withdrawing  or  discharging  juror  before, 

instruction  assuming,    . 

on  Sunday, 

refusing  to  direct, 

general,  of  guilty,  inquiry  of  jury  on, 
VERITY,  absolute,  imported  by  bill  of  exceptions 


149 
175 

185 

272 

284 

147 

274 

243 

491 

347 

476 

369 

284 

284 

282 

177 

11 

12 

14 

14 

16 

19 

52 

50,53 

476 

475 

602 

627 

500, 501 


154 

193 

225 

310 

331 

152 

317 

281 

614 

400 

583 

423 

331 

332 

329 

197 

3 

4 

6 

6 

8 

15 

40 

39,42 

586 

681 

809 

859 

624,  625 


INDEX. 


Y99 


VESSEL,  abandonment  of,  in  insurance, 

war  risks  in  insurance,  . 
sunken,  negligence  in  removing, 
negligence  of  collision,  . 
VEXATIOUS  delay  in  payment,     . 

VIEW  of  jury 

VIOLATION  of  conditions  in  insurance  policy, 

in  deed,  knowledge  of, 
VOID,  deed,  as  to  creditors,  . 
for  uncertainty,  . 
VOLUNTARY  assignment,  delivery  under, 

preference  of  creditors, 
fraud  in,      . 

presumption  against 


PAGE 

SECTION 

.  209 

248 

.  208 

246 

.  233 

266 

.  232 

266 

.  138 

151 

.  284 

332 

.  200 

234 

.  113 

127 

.  154 

158 

.  145 

152 

177, 252 

199, 288 

.  251 

288 

251,253 

288 

ist,  251 

288 

w. 

"WAIVER;  intention,  .  .  .  _.  .  .  .110 
by  administrator,  of  copy  of  claim,       .         .         .111 

of  foreclosure  of  mortgage, Ill 

by  acceptance,  of  part-performance,  .  .  .111 
of  rights  as  to  compromise  agreement,  .         .112 

of  conditions  in  insurance, 209 

of  instructions  being  given  in  open  court,  .  .  308 
or  not  as  to  goods  forwarded,  ....  481 
of  the  right  of  excepting,  express  and  implied,  511-518 
of  exceptions, 653, 657 

WANT  of  precise  definition  in  charges,  .        *        .     365 

WAREHOUSEMAN,  whether  agent,  .  .  .  .129 
negligence, 226 

WARRANT;   malicious  issue 256 

WARRANTY, 89 

intention,      ........  89 

in  insurance  policy, 197 

in  life  insurance, 202 

instruction, 487 

WAR  RISKS  of  vessels  in  insurance,    ....  208 

WASTE, 264 

WATER  claims,  negligence  of  miners  in  prosecuting,    .  235 

WATER-COURSE ;  obstruction, 211 

reasonable  use, 215, 207 

privilege,       ........       73 

WAY,  right  of;  damages 263 

continuation  of,     ......         ,     271 

location, 147 

user  ;   instruction, 437 

contributory  negligence, 233 

WERSTER-PARKMAN  case;  charge,        .        .        .467 

"WEIGHT  of  testimony  or  evidence,  .  .  .  280,426 
of  dying  declarations, 282 


124 

124 

124 

124 

124 

250 

356 

597 

637-654 

892,  897 

422 

146 

263 

291 

91 

91 

234 

234 

605 

246 

296 

273 

251 

258, 301 

77 

294 

370 

152 

606 

267 

567 

327,501,502 

328 


800 


INDEX. 


WHO  may  except  to  rulings  of  court,    . 
WIDENING  of  a  river, 
WIDOW,  authority  to  sell  lands  of  estate, 
WIFE,  testimony  of,      .'        .         .         . 

lands  of;  occupation  by  husband, 

loaning  money,     .... 
WILL  ;  revocation,         .... 

descri})tion  of  land, 

intention  of  taking  possession  under, 

or  deed,  ■whether  instrument  is,     . 

formalities  of,        ...        . 

capacity  of  testator, 

intention  of  testator,     . 

ratification  by  legatee,  . 

addition  to, 

WITHDRAWING  juror  before  verdict, 

instructions,  .... 

issues  by  instructions,  . 
WITNESS,  meaning  of,  ... 

competency,  .... 

disqualification,     .... 

cajiacity, 

credibility 

impeachment 

personal  knowledge  of,  by  jury,     . 

knowledge  of  person,    . 

remark  of  judge  concerning  bearing, 

instruction  as  to  credibility  of  party's  own, 

credibility  of;  instruction,    . 

rule  as  to  estimating  credibility,    . 

See  Evidence,  Testimony,  and 

WOOD,  identity 

WORDS,  meaning  of,     . 

and  ])hrases,  meaning  of, 

definition  of,  in  slander,         .         . 

or  terras,  as  "  timber," 
WORK  ;  performance  and  acceptance,   . 
WRITINGS ;  direct  interpretation, 

non-production  of,         .         ,         . 
WRITTEN  evidence,  direct  and  indirect, 

agreement  as  collateral  evidence,  . 

contract;  proof,    .... 

and  spoken  words,  meaning  of, 

and  unwritten  foreign  laws,  . 

contracts  ;  construction, 

evidence  and  depositions  sent  to  jury's  room, 

instrument  referred  to  jury, 

modifications  and  explanations. 

See  Instructions. 
WRIT  of  error  with  bills  of  exception,  . 


PAGB 

SECTION 

.  508 

(iJJ 

.  127 

145 

.  134 

149 

.  284 

331 

.  1G6 

172 

.  1G6 

172 

102,  160 

102,  167 

.  145 

152 

.  102 

104 

.  159 

167 

.  160 

167 

.  160 

167 

.  102 

102 

.  161 

167 

.  250 

286 

50,53 

39,42 

337,  364 

385,419 

.  354 

407 

.  283 

330 

.  277 

324 

.  277 

324 

.  277 

324 

.  279 

326 

270,  280 

325,327 

.   25 

25 

.  114 

128 

.  359 

413 

.  417 

490 

.  4G3 

559 

.  463 

559 

Wife. 

.  125 

140 

.   69 

75 

.   71 

76 

.   75 

77 

.   80 

83 

.  263 

295 

.   30 

30 

.  285 

332 

.   27 

28 

.   83 

85 

.   85 

86 

.   69 

75 

.   64 

67 

.   80 

82 

.  418 

492 

.  419 

494 

.  329 

370 

502 


626 


INDEX  TO  SUPPLEMENT. 


A. 


PAGE 


ACKNOWLEDGMENT  OF  NOTE,  naixed  question  of  law  and 

fact 682  17 

ADMISSIBILITY  of  evidence,  for  court. 675,  700  1.  41 

ADVERSE  POSSESSION,  limits  and  boundaries  of,  for 

jury 682  14 

AFFIRMATIVE  QUESTION,  who  has,  for  jury 682  19 

AGENCY,  whether  husband  acts  as  agent  for  wife,  for  jury. . .  .680  8 

AGREEMENT,  intention  of  contemporaneous,  for  jurj' 679  8 

ALTERATION  in  note,  when  made,  for  jurj- 682  14 

AMENDMENT,  bill  of  exceptions  may  be  amended 716  -30 

AUTHORITY  to  do  act,  for  jury > .  .680  10 

B. 

BOUNDARIES,  of  adverse  possession,  for  juiy 682  15 

c. 

CHARGE.     {See  Ixstructioxs) 

CONFLICTING  EVIDENCE,  to  be  weighed  by  jury 675  1 

CONSTRUCTION,  court  to  construe  writing 676  2 

of  town  plat,  for  court 678  5 

of  parol  contract 679  7 

COURT.    {See  Special  Topics) 

CONTRACT,  external  circumstances,  for  jury 678,  679  4,  8 

CORRESPONDENCE,  written,  for  court  to  expound 676  2 

CREDIBILITY  of  witness,  for  jury 675,  700  1,  41 

D. 

DIRECT— court  may  direct  verdict 704  42 

51 


802  INDEX    TO    SUPPLEMENT. 

E. 

EVICTION,  what  constitutes  for  juiy  to  determine 683  20 

EVIDENCE  cannot  be  submitted  hypotlietically  to  jury. ..... .675  1 

admissibility  and  competency  for  court,  credibility,  weight 

and  sufficiency  for  juiy.     {See  Special  Topics) 700  41 

ESTOPPEL  as  to  exceptions 712  46 

EXCEPTIONS  no  distinction  between  legal  and  equitable  ac-^ 

tions 716  54 

must  be  made  in  court  below 704  44 

not  specified  at  the  time  are  waived 704  44 

must  be  urged  before  verdict 705  44 

must  be  formal  and  specific 706  44 

cannot  be  made  to  charge  as  a  whole 706  44 

must  be  filed  by  parties  to  suit 709  45 

must  be  filed  where  i-uliug  was  made 709  45 

time  of  filing •  -710  45 

must  be  signed 710  45 

mandamus  will  lie  to  compel  signature 710  45 

presumption  as  to  signature 711  45 

cannot  be  signed  by  deputy •" 711  45 

signature  imports  verity 711  45 

change  must  result  in  injury 712  46 

what  must  be  shown  by 712  46 

estoppel  apphed  to • 712  47 

may  tacitly  w^aive  right  to  except 71o  48 

purpose  and  contents  of  bill 713  49 

verity  of  bill 716  50 

must  be  filed  by  party  to  suit 709  45 

may  be  amended 716  50 

judge  settling  after  expiration  of  term  of  office 716  51 

what  may  be  disaUowed 716  52 

may  be  filed  subsequently  to  signature 711  45 

F. 

FILING,  exceptions  must  be  filed  by  party  to  suit 709  45 

must  be  filed  where  ruling  is  made 709  45 

may  be  filed  subsequent  to  signature  ....711  45 

H. 

HUSBAND,  whether  agent  for  wife,  for  jury ." .  .680  8 

HYPOTHETICAL,  presentation  of  evidence 675  1 

I. 

INFRINGEMENT  of  patent 689  25 

INSTRUCTIONS,  mere  questions  of  law  not  to  be  given  in. . .  .689  26 

must  be  applicable  to  issues  and  evidence 689  27 

must  discriminate  issues  raised - 689  27 

substance  must  be  conformable  to  declaration 690  27 

rule  appUes  to  issue  out  of  chancerj' 690  27 

no  abstract  principle  shall  be  given ._ 690  27 

evidence  must  be  sufficient  to  raise  question  given 690  27 


INDEX   TO    SUPPLEMENT.  803 

fNSTRUCTIONS.     (Continued.) 

all  facts  must  be  embraced 690  27 

none  to  be  given  concerning  criminal  penalty 691  27 

no  stress  to  be  laid  on  particular  points 692  2(S 

must  not  assume  facts  disputed 692  28 

must  be  clear  and  certain 69o  30 

hypothetical,  when  given 695  32 

I'epetitions 696  88 

adchtional  may  be  given  after  jury  retire 696  34 

judge  may  withdraw 69()  34 

requests  for,  duties  of  judge,  how  made 697  35 

restrictions  on  manner  of  giving 697  36 

must  be  construed  together 697  37 

argumentative,  when  given 699  38 

as  to  admission  of  allegation 700  39 

must  not  bolster  up  testimony 700  39 

must  be  correct  on  both  sides 675  1 

as  to  inference  to  be  made 700  40 

as  to  evidence 700  41 

when  judge  may  direct  verdict 700  42 

refused  insti-uctions  not  to  be  read  to  jury 704  43 

eiToneous,  must  be  injurious 704  41 

INTENTION,  question  of,  for  jury 712  46 

INTERPRETATION.    (See  Constructions) 683       20, 21 

INSURANCE,  what  is  increase  of  risks,  for  jury 680  9 


J. 

JUDGE,  refusal  to  sign  exceptions 710  45 

JUDGMENTS,  effect  of,  for  court 688  24 

JURY.    (S'fe  Instructions.) 

K. 

KNOWLEDGE  and  notice 681  13 

L. 

LANDLORD,  intention  of  eviction  or  trespass 683  20 

LOCALITY,  question  of,  mixed 682  16 

M. 

MANDAMUS,  lies  to  compel  signature 710  45 

N. 

NEGLIGENCE,  when  for  court,  when  for  jury 683  2^ 

NOTE,  alteration  of,  what  for  jury 682  14 

NOTICE,  when  for  jury 681  18 


804  INDEX    TO    SUPPLEMENT,    " 

o. 

OBJECTION  must" be  made  in  court  below- 712  46 

{See  Exceptions.) 

ORDINANCE,  violation  of,  question  for  juiy 678  6 

P. 

PAROL  AGREEMENT,  when  for  jury 679  7, 8 

PAROL  EVIDENCE,  to  impeach  writing,  for  jury 677  3 

PARTIES  TO  CONTRACT,  who  are.  for  jury 679  8 

PERTINENCY.    {See  Relevancy.) 

PLACE,  matter  of,  mixed  question 682  19 

PLAT,  town,  construed  by  court 678  5 

POWER,  perversion  of,  mixed  question 682  17 

PREPONDERANCE  OF  EVIDENCE,  for  juiy 677  3 

R. 

RELEVANCY,  of  evidence,  for  court 675  1 

S. 

SIGNATURE,  exceptions  must  bo  signed 710  45 

may  be  enforced 710  45 

presumption  of 711  45 

cannot  be  signed  by  deputy 711  45 

imports  verity 711      .        45 

when  iiUng  subsequent  to 711  45 

SUBSCRIPTION,  whether  conditions  are  fulfilled,  for  jury. .  .679  8 

SUFFICIENCY  OF  EVIDENCE,  for  juiy 675,  700  1, 41 

T. 

TENANT,  intention  of  landlord  mterfering  with,  for  jury 683  20 

TITLES,  which  of  two  conflicting,  for  jury 677  3 

V. 

VERDICT,  when  court  may  lUrect 704  42 

VERITY  of  bill  of  exceptions 716  -50 

w. 

WAIVER,  question  of,  for  jury 681  11 

of  right  to  exception 713  48 

by  not  being  specified 704  44 

WEIGHT  of  evidence,  for  jury 700  41 

WRITING,  parol  evidence  to  impeach,  for  jury 677  3 

AVRITTEN  CORRESPONDENCE,  expounded  by  court 676  2 


^ 


■H 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  836  803 


